N.N. Mathur, J. - (1.) By way of instant petition under Section 482 of the Code of Criminal Procedure, petitioners have challenged the order passed by the Additional Chief Judicial Magistrate, Makrana dated 15.05.1999 whereby he has taken cognizance against the petitioners for offence under Section 427/109 I.P.C. on the application under Section 319 of the Code of Criminal Procedure.
(2.) The relevant facts giving rise to the instant petition are that on 18.10.1991 one Haji Jean Mohd. lodged a First Information Report at Police Station, Makrana to the effect that one Kalu driving the jeep No. RSD-5146 dashed against his car. He also stated that he was sitting in the car along with s his son and the driver. On this information police registered a case for offence under Section 279 and 427 IPC. Pace forwarded a Final Report. On 14.11.1991 complainant submitted a complaint on the same facts for offence under Section 307/34, 120-8 and 427 IPC. Learned Magistrate sought report under Section 210 of the Code of Criminal Procedure. Complainant got the to witnesses examined. Learned Magistrate by order dated 31.1.1994 took cognizance against Kalu for offence under Section 427 I.PC. and against the petitioners Yusuf and Usman Gani for offence under Section 427/109 LPL. On a petition filed by the present petitioners this court by order dated 7.11.1994 quashed the order and sent back the matter to the court of learned Judicial Magistrate. Court again took the cognizance against all the three accused persons for offence under Section 427 and 427/109 IPC by order dated 27.7.1996. On a petition tiled by the petitioners, this court again quashed the order and sent the matter back for rehearing. Learned Additional Chief Judicial Magistrate by order dated 25.5.1997 discharged the petitioners Yusuf and Usman Gani and framed the charges against Kalu for offence under Section 279 and 427 IPC. The trial court recorded the statement of PW1 Haji Jean Mohd. and PW2 Faiyaz Mohd. On the basis of the statements of these two witnesses, an application has been filed under Section 319 of the Code of Criminal Procedure for taking cognizance against the petitioners. It was stated by both the witnesses that petitioners herein namely Yusuf and Usman Gani exhorted the driver of the jeep namely Kalu to hit the car. On the basis of the statement of witnesses, learned Magistrate has taken cognizance against the petitioners for offence under Section 427/109 IPC by the impugned order.
(3.) I have heard learned counsel for the parties and perused the impugned order. It is contended by the learned counsel that once the petitioners were discharged of offence under Section 427/109 IPC. they would not have been added as accused during the trial in exercise of powers under Section 319 of the Code of Criminal Procedure.;