Prashant Kumar Agarwal, J. - (1.) THE accused -petitioners have filed this Criminal Misc. Petition under Section 482 Cr.P.C. against the order dated 11.08.2010 passed by the Additional Sessions Judge No. 2, Alwar in Criminal Revision Petition No. 114/2009 whereby the learned revisional Court by dismissing the revision petition filed by the petitioners upheld and affirmed the order dated 10.09.2009 passed by the Judicial Magistrate No. 2, Alwar in Criminal Case No. 120/2007 whereby the learned trial Court ordered to frame charge against the petitioners for the offences under Sections 323, 323, 147, 341 and 379 IPC.
(2.) BRIEF relevant facts for the disposal of this petition are that for an incident dated 18.03.2002, FIR No. 112/2002 came to be registered at Police Station Kotwali, Alwar on 18.03.2002 for offences under Sections 143, 341, 323 and 379 IPC at the instance of respondent -complainant against accused -petitioner -Shri Bijendra Singh and four -five his companions and after investigation it was found that only offence under Section 323 IPC has been committed and the same being a non -cognizable offence FR was filed by the investigating agency in the trial Court. The respondent -complainant filed protest petition and the learned trial Court after considering the FR, the evidence collected during investigation and the protest petition vide order dated 18.11.2003 took cognizance against the petitioners and one Shri Chhitar Singh, who subsequently died, for offences under Sections 147, 323, 341 and 379IPC. It is an admitted fact that order dated 28.11.2003 was not challenged and it got finality. After appearance of petitioners, learned trial Court vide order dated 30.06.2007 framed charge for offences under Sections 323, 323/149, 341, 379and 147 IPC against the petitioners and the same was challenged by them by way of Criminal Revision Petition No. 21/2012 and it was partly allowed by the revisional Court vide order dated 26.09.2008 and the matter was remanded to the trial Court with direction to pass a fresh order recording reasons in support thereof. The order dated 26.09.2008 was challenged by the respondent -complainant before this Court by way of S.B. Criminal Revision Petition No. 1443/2008 and the Coordinate Bench vide order dated 16.02.2009 quashed and set aside a part of the order dated 26.09.2008. In compliance of the order dated 26.09.2008 and 16.02.2009, learned trial Court vide impugned order dated 10.08.2009 re -framed charge against the petitioners for the offences under Sections 323, 147, 341 and 379 IPC with a finding that in the said incident more than five persons were involved. The order dated 10.08.2009 was challenged by the petitioners by way of Criminal Revision Petition No. 114/2009, but without success. It was submitted by the learned counsel for the petitioners that there is no iota of evidence available on record showing even prima facie commission of any offence by the petitioners, but learned trial Court as well as revisional Court without considering the matter in a correct perspective has ordered to frame charge against the petitioners for the aforesaid offences. It was submitted that after investigation negative final report was filed by the investigating agency with a finding that at the most offence under Section 323 IPC has been shown to be made out against the petitioners and it being a non -cognizable offence police is not empowered to file charge -sheet and even after submissions of protest petition by the respondent -complainant, no further evidence was recorded by the trial Court under Sections 200 and 202 Cr.P.C. but even then charge has been ordered to be framed for the aforesaid offences. It was further submitted that offence under Section 379 IPC is also not disclosed, more particularly in view of the fact that no recovery was made from the petitioners or any of them. It was further submitted that for an offence to be made out under Section 147 or with the aid of Section 149 IPC, involvement of five or more persons is required to be shown, but in the present case cognizance was taken only against four persons and charge has been framed only against petitioners and thus, the basic ingredient to make out aforesaid offence is completely absent, but even then charge has been ordered to be framed.
(3.) IN support of his submissions, learned counsel for the petitioner relied upon the case of Jalla Khan & Ors. v. State of Rajasthan reported in : 2014 (2) WLC (Raj.) 306.;