- (1.) THIS revision petition has been filed against the order dated 26.2.2010 passed by the learned Addl. Sessions Judge, Sojat, who set aside the order dated 28.10.2009 passed by the Addl. Chief Judicial Magistrate, Sojat in Criminal Case No. 296/1999 who has declined to frame de-novo charge under Section 326 IPC.
(2.) THE short facts of the case that FIR bearing No. 119/98 was lodged. After usual investigation, charge- sheet was filed against the petitioners for the offences under Sections 147, 148, 149, 459, 325, 324, 323 and 326 and 307 IPC, which was committed to the court of learned Addl. Sessions Judge, Sojat. After hearing the parties, the learned Addl. Sessions Judge, Sojat vide order dated 16.11.1999 remanded the matter back under Section 228,Cr.P.C. to learned Addl. Chief Judicial Magistrate, Sojat with a conclusion that charges under Sections 307 and 326, IPC are not made out against the present petitioners and prima facie, only charges under Sections 148, 452, 325, 324, 323 read with Section 149 IPC are made out against the present petitioners. Thereafter, the learned trial court has also framed the charged under the above sections. The present petitioners have been discharged from the offence under Sections 326 and 307 IPC. The prosecution has examined 21 witnesses. After conclusion of the prosecution evidence, the petitioner was also examined under Section 313, Cr.P.C. and the matter was posted for final arguments. Thereafter, on 6.7.2007, application under Section 216 Cr.P.C. has been moved to frame charge under Section 326 IPC, which was rejected by the learned Addl. Chief Judicial Magistrate stating therein that earlier the petitioners have been discharged for the offence under Section 326 IPC by the learned Addl. Sessions Judge vide order dated 16.11.1999 and now this order cannot be reviewed by the learned Addl. Chief Judicial Magistrate. On revision, the leraned Addl. Sessions Judge has directed that under Section 216 Cr.P.C. charges can be amended at any time and hence the charge under Section 326 IPC should be framed against the present petitioner. Aggrieved against this order, this revision petition has been filed. The only contention of the present petitioners is that when by order dated 16.11.1999 the present petitioners have been discharged from the offence under Section 3268 IPC, now charge under Section 326 IPC cannot be framed by taking recourse to provisions of Section 216 Cr.P.C. and reliance has ben placed on Amra Ram v. State of Raj. & anr. ( 2011(2) RJT 1226) wherein it has been held as under:- " In my opinion, on complainant's application, filed under Section 216, Cr.P.C., without challenging the order of framing charge, learned Trial Court has rightly rejected the application." Further the petitioner has relied on Rihan Ahmed & ors. v. The State of Raj. (2012(1) CJ(Cri.)(Raj.) 346) wherein it has been held as under:- "In the present case, when the revisional court has discharged the present petitioners Nos. 4 and 5 from the charges under Sections 325 and 326 IPC, it was not within the jurisdiction of the trial court again charge the petitioners for the same offence on the same set of evidence and hence the impugned order qua petitioners Nos. 4,5 and 6 is liable to be quashed." Looking at the above legal position, the order deserves to quashed. When the learned Addl. Sessions Judge has discharged the present petitioners for the offence under Section 326 IPC, that order has never been challenged by party. Meaning thereby that the order of discharge has become final. On same set of evidence, the petitioners could not be charged for the offence under Section 326 IPC.
(3.) IN view of the above, this revision petition is allowed and the order of the revisional court dated 26.2.2010 is hereby quashed.;