JUDGMENT 1. - This petition has been filed against the order passed by the learned Additional Sessions Judge, Dholpur dated 20-12-89 taking cognizance of offence under Sec. 376 IPC against accused-petitioners Ramjilal and Radhey Shyam. 2. This case has a chequered history. An FIR was lodged on 23rd Nov., 1988 by one Chand Main, a citizen of Bangladesh, before the Collector, Dholpur that rape is being committed on the female inmates of the detenue camp of Bangladesh refugees. This complaint was sent to Police Superintendent, Dholpur for getting investigated. A case for offence under Sections 307 and 323 IPC was registered against several accused-persons. During investigation it was stated by prosecutrixes that rape was being committed upon them. Several persons including accused petitioner were arrested and since their names were not known from before, identification parade was also held. Police submitted a charge-sheet for offence under Sec. 3/6 IPC against petition inter alia others. The case was committed to the court of sessions and the learned Additional Sessions Judge, Dholpur vide order dated 2-12-89 framed charges against accused Prem Singh, Mohd, Arif, Ramjilal, Radheshyam. Sunderpal, Parakh Singh for offence under Sec. 376 IPC and against Sabir, Shivam and Rakesh for offence under Sections 376 and 323 IPC. All the accused filed petition under Sec. 482 Cr. P.C. before this Court challenging the order framing charges. This petition was filed on 5-12-89 against the aforesaid order dated 2-12-89 and came up for admission before the Bench on 7-12-89. This Court directed not to record the statement of prosecution witnesses till 14-12-89 and the case was directed to be heard on 12-12-89. On 13-12-89 Hon'ble Kapur J. accepted the petition of Ramji Lal, Radhey Shayam and Sheo Ram and discharged them of the offences under Sections 376 and 323 IPC. Misc. Petitions of Rakesh Kumar, Prem Singh and Paras Singh were referred. This order dated 13-12-89 was communicated to the learned Additional Sessions Judge soon after it was passed. However, it is pertinent to mention here that the learned Additional Sessions Judge meanwhile i.e. between 2-12-89 and 20-12-89 had already recorded the statements of seven witnesses, hence the learned A.P.P. during the pendency of trial moved an application under Sec. 319 Cr.P.C. and requested the learned Judge to take cognizance of the offence against Ramji Lal and Radhey Shyam petitioners. The learned Additional Sessions Judge holding that six of the witnesses have named Ramji Lal and Radhey Shyam, took cognizance of the offence under Section 376 IPC on application under Sec. 319 Cr.P.C. vide order dated 20-12-89 which is under challenge in this petition. 3. Notice of this application was given to the State and arguments were heard. 4. It is contended by the learned counsel for the petitioners that the order of the learned Additional Sessions Judge is virtually contemptuous of the order of this Court. The learned Judge at best could have made a reference to this court rather the in circumventing the order passed by this Court only four days prior to the passing of this order. It is submitted that it appears from the perusal of the order as if it has been passed with all vengeance as the charge framed by the learned Sessions Judge was set aside by this Court and the petitioners were discharged. The contention of the learned counsel is that once the accused was discharged particularly on the ground that the accused, who were put to test identification parade were not identified by the witnesses, the identification in the court was of no avail. It is submitted that accused Ramjilal was not even named by any of the witnesses in their statements recorded under Sections 161 and 164 Cr.P.C. and, therefore, it was again of no avail. Same holds good for accused Radhey Shayam also. 5. Learned Public Prosecutor has supported the order and submits that there are so many witnesses who have named the accused during trial and the trial Court was justified in taking cognizance. 6. I have given my thoughtful consideration to the rival submissions and have perused the record. Admittedly, the petitioners had been arrayed as an accused in this case and charge-sheet was submitted against them for various offences. They had been committed to the court of sessions and the learned Additional Sessions Judge had also framed charges against them. They challenged the order framing the charge and were ultimately discharged. Therefore, it was, in this very trial that the accused against whom not only the process had been issued but were charge-sheeted and then after committal, charges were read over to them, the said proceedings terminated in their favour by virtue of the order of discharge passed by Hon'ble Mohini Kapur J. on 13-12-89. Therefore, it was, in this very trial that the accused against whom not only the process had been issued but were charge-sheeted and then after committal, charges were read over to them, the said proceedings terminated in their favour by virtue of the order of discharge passed by Hon'ble Mohini Kapur J. on 13-12-89. Once the proceedings had been terminated in their (illegible) a right had vested into them and they could not be divested of the right without a notice to show cause. It is the fundamental principal that none should be condemned unheard and principle of audi alterm partem has virtually gone down as a rule of law in this country. This rule has specifically been incorporated in the matters when the accused are discharged in Section 398 Cr.P.C. which reads as under:- "398 Power to order inquiry:- On examining any record under Section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or any of the Magistrates subordinate to him to make, any of the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make further inquiry into any complaint which has been dismissed under Section 203 or subsection (4) of Section 204. or into the case of any person accused of an offence who has been discharged : Provided that no court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made." 7. A Persual of Section 398 Cr.P.C., quoted above, clearly indicates that no direction can be given even to make further inquiry in a case where an accused has been discharged without giving him an opportunity of showing cause as to why such directions should not be made. The learned Additional Sessions Judge, in this case immediately upon moving an application before him by the learned Public Prosecutor ordered to array the petitioners as accused persons under the Public Prose 319 Cr.P.C. Even the provisions of Section 319 Cr.P.C. has not been properly read by the learned Judge and he has mechanically issued Smt. Rama Sharma v. Pinky Sharma and others (1989 Cr. L. J. 2153). 8. L. J. 2153). 8. I have gone through the aforesaid authority and am constrained to say that the learned Magistrate has not read that also properly. The case relied upon by the learned Additional Sessions Judge does not deal with the provisions of Section 398 Cr.P.C. or that manner was not based on an application filed by the Public Prosecution in the manner done in the present case. In the present case, it is very significant to note that Hon'ble Kapur J. decided the case on 13-12-89 and she while allowing the application under Sec. 482 Cr.P.C. considered the statements of the witnesses submitted along with the charge-sheet and the fact that accused had not been identified in the identification parade. It was only within a week of passing of this order that the learned Additional Sessions Judge on 20.12.89 passed the impugned order making the order of Hon'ble Kapur J. ineffective. The learned Additional Sessions Judge has supported his order dated 20-12-89 by stating that when the revision was filed in the High Court evidence of prosecution had not been taken as if it was obligatory for the accused to have waited prosecution to be taken before challenging the order framing the charges. In fact, the charges were framed on 2-12-89 and on 7.12.89 this Court had directed the learned Addl. Sessions Judge not to record the statements of the prosecution witnesses till 14.12.89 and case was ordered to be listed on 12.12.89. This Court decided the petitions on 13-12-89 and on 20-12-89, the learned trial Judge, as mentioned above, set at naught the effect of the order. Speedy trial of a sessions case, is always appreciable but at times hot-haste as shown in the manner in the instant case reflects upon the functioning of the court more particularly when utter dis-regard has not only been shown to the orders of this court but also to the provisions of law. I have already mentioned above that order of the discharge passed by the High Court in favour of the petitioners gave a right to the accused and a finality has been attached to such an order. I have already mentioned above that order of the discharge passed by the High Court in favour of the petitioners gave a right to the accused and a finality has been attached to such an order. It may be that the said order may not fall within the ambit of principle of Autro Fois Acquit but at the same time the said order having been based on material available on record in favour of a person, 'Accused of an offence', in the case, attains finality. Their Lordships of the Supreme Court in Cr. Appeal No. 452/453 of 1990 Sohan Lal v. State of Rajasthan (1990 (3) SVLR (Cr ) 56) while reversing a decision of this Court categorically held that provisions of Sec. 319 Cr.P.C. have to be read in consonance with the provisions of Sec. 398 Cr.P.C. It has been held that once a person is brought before the Court as an accused of an offence in the case, he goes out of the reach of the provisions of Sec. 319 Cr.P.C. Their Lordships considered and held that the words used in Sec. 319 Cr.P.C., 'any person not being accused', indicate that if a person had been made an accused of an offence in a case and if he has been discharged under the relevant provisions of the Code, it is in nature of finality to such order and the resultant protection of the person discharged is only subject to revision under Sec. 398 of the Code. Their Lordships, however, observed that it is a different question if the accused can be dealt with under any other provision then in Section 319 of the Code. This decision concludes the entire controversy and makes the orders of the learned Magistrate absolutely illegal. 9. Considering the order of the learned Additional Sessions Judge from any angle even on merit also, it is perverse. An Additional Sessions Judge trying serious cases ought to know the law of identification of the accused-persons When an accused is not known to the witnesses the condition precedent is a prior test identification parade. It is essential to note that in the instant case not only the accused were not known to the witnesses and were not named in the FIR but even in the test identification parade, though held, had not been identified. It is essential to note that in the instant case not only the accused were not known to the witnesses and were not named in the FIR but even in the test identification parade, though held, had not been identified. Therefore, it was obligatory for the learned trial Judge to have perused the record before mechanically basing his decision on the statements of Motia, Jahanara, Hussainara and Majida. Lesser I comment about the order of the learned Additional Sessions Judge, better it is as the manner in which the proceedings have been taken have left a very unhappy impression on my mind. 10. In view of the aforesaid discussions. I have no hesitation in holding that the order of the learned Additional Sessions Judge dated 20-12-89 is perverse and deserves to be set aside. Consequently, the order taking cognizance against Ramjilal and Radhey Shyam dated 20-12-89 is set aside and the necessary consequences that warrants issued are quashed. Warrants, if already issued, shall not be executed. 11. This petition is allowed as indicated above.Petition allowed. *******