JUDGMENT Hon'ble SHARMA, J.-This criminal revision petition has been filed against the order dated 1.4.2010 of Addl. Sessions Judge (Fast Track) No.3 Bharatpur Head Quarter Bayana in Sessions Case No. 27/2008 whereby the application under Section 319 Cr.P.C. filed by the prosecution for taking cognizance in FIR No. 118/2001 registered at Police Station Halena, Tehsil Weir District Bharatpur against the accused petitioner under Sections 147,323, 341, 379 IPC was allowed and the court issued warrant of arrest against the accused petitioner. 2. Brief facts of the case are that the complainant submitted a written report on 13.6.2001 at Police Station Halena Distt. Bharatpur and on that FIR No. 118/2001 came to be registered for the offences under Sections 147,323, 341 and 379 IPC. After usual investigation the police filed charge sheet on 4.12.2002 for the offence under Sections 147, 148, 149, 323, 325, 326, 307 and 379 IPC against the persons named in the charge sheet and final report was submitted by the police against the accused petitioner. It is alleged that after registering the FIR, during investigation the police arrested the accused petitioner in FIR No. 118/2001 and FR was submitted in respect of the accused petitioner and further the police moved application under Section 169 Cr.P.C. before the judicial Magistrate concerned stating therein that after thorough investigation, investigating agency came to the conclusion that the accused petitioner has been falsely implicated in the matter. The complainant filed protest petition on 25.1.2003. The Judicial Magistrate vide his order dated 28.2.2005 rejected the protest petition after hearing both the sides. Aggrieved against the order dated 28.2.2005 the complainant filed a revision petition before the revisional court and the complainant did not press the revision petition and the same was dismissed as not pressed by the revisional court. The Addl. Sessions Judge Fast Track No.3 Bharatpur HQ Bayana after hearing arguments framed charge against the persons against whom charge sheet was filed but did not consider it proper to frame charge against the accused petitioner. After framing the charge, trial commenced and statements of 9 witnesses were recorded by the Sessions Court. On 5.3.2010 the complainant non-petitioner No. 2 filed application under Section 319 Cr.P.C. for taking cognizance against the accused petitioner. It is alleged that without hearing the accused petitioner the trial Court allowed the application for taking cognizance against the accused petitioner vide order dated 1.1.2010. On 5.3.2010 the complainant non-petitioner No. 2 filed application under Section 319 Cr.P.C. for taking cognizance against the accused petitioner. It is alleged that without hearing the accused petitioner the trial Court allowed the application for taking cognizance against the accused petitioner vide order dated 1.1.2010. Against this order the accused petitioner filed this revision petition for quashing the order taking cognizance against him. 3. The learned counsel for the petitioner placed reliance on the case of Sohan Lal and others vs. State of Rajasthan (1990) 4 SCC 580 ). According to him the provisions of section 319 Cr.P.C. has to be read in consonance with section 398 Cr.P.C. Once a person is found to have been accused in the case he goes out of the reach of section 319 Cr.P.C. The necessity of making a further inquiry as envisaged in section 398 Cr.P.C. cannot be obviated or circumvented by taking resort to section 319 Cr.P.C. 4. The learned Public Prosecutor opposed the arguments and contended that once cognizance has been taken under Section 319 Cr.P.C. cannot be set aside and trial should be continued against the accused petitioner and he be directed to appear before the court concerned as per the directions given by the trial Court. 5. I have heard the learned counsel for the parties and scanned the material available on record and considered the case law cited by the learned counsel for the accused petitioner. 6. In Sohan Lal and others vs. State of Rajasthan (1990) 4 SCC 580 ) their Lordships of the Supreme Court in paras 28, 29, 30, 31, 32 and 33 which are relevant for the present purpose, read as under: 28. In the instant case, Vijay. Bai and Jiya Bai were dis-charged by the Magistrate of all the charges and the three other appellants were discharged of the sections other than section 427 IPC. After the police submitted charge sheet against them the order of discharge, according to Mr. B.D: Sharma, could not be taken to be one under Sec. 203 but under S. 245 which is included in Chapter XIX and deals with trial of warrant cases by the Magistrates. This submission has not been refuted. That section says: "245. When accused shall be discharged. B.D: Sharma, could not be taken to be one under Sec. 203 but under S. 245 which is included in Chapter XIX and deals with trial of warrant cases by the Magistrates. This submission has not been refuted. That section says: "245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in S. 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." " 29. If that was so, the question is what would be the effect of the order of discharge?' Should the protection resulting from such an order of discharge be allowed to be taken away by allowing the same Magistrate to take cognizance of the offence or offences against them at a later stage of the trial, without further enquiry where the order of discharge was not challenged or even if the order of discharge was taken in revision and the same was affirmed by the revision- all court? Section 397 empowers the High Court or any Sessions Judge to call for examining the records or any proceedings before any inferior criminal court within its jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed etc. Section 398 empowers the High Court or the Sessions Judge to order inquiry. It says: "On examining any record under Sec. 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Sec. 203 or sub-section (4) of Sec. 204, or in to 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." Thus this provision empowers, the Courts to direct further inquiry into any complaint which has been dismissed under Sec. 203 or sub-section (4) of Sec. 204 or in the case of any person accused of the offence who has been discharged and no such order shall be made unless such person has had an opportunity of showing cause why such direction should not be made. 30. The question therefore is whether the necessity of making a further inquiry as envisaged in Sec. 398 could be obviated or circumvented by taking resort to Sec. 319. As has already been held by this Court, there is need for caution in resorting to Sec. 319. Once a person was an accused in the case he would be out of reach of this section. The word "discharge" in Sec. 398 means discharge of an offence relating to the charge within the meaning of Ss. 227, 239, 245 and 249. Refusing to proceed further after issue of process is dis-charge. The discharge has to be in substance and effect though there is no formal order. The language of the section does not indicate that the word "discharge" should be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after examination of the whose case. The cases of appellants 4' and 5 would be one of total discharge. But it could not be said that they were not some of the accused in the case, or that cognizance was not taken of the offences against them. A person may be accused of several offences and he may be discharged of some offences and proceeded against for trial in respect of other offences. This was the position regarding appellants 1, 2 & 3, who were partially discharged. 31. Tile High Court did not subscribe to the view taken in State vs. Gangaram Kalite reported in AIR 1965 Assam and Nagaland 9. Therein a chargesheet having been filed against 9 accused persons in his Court the sub-Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on 26.6.1961. Therein a chargesheet having been filed against 9 accused persons in his Court the sub-Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on 26.6.1961. Subsequently on 22.8.1961, without any fresh chargesheet or a complaint, Sub-Divisional Magistrate decided to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evidence. On a reference by the Additional District Magistrate, calling into question the procedure followed by the sub-Divisional Magistrate a single bench of the High Court of Assam and Nagaland on the basis of Section 241-A of the old code of the Criminal Procedure held that assuming that the discharge order has been validly passed, the Magistrate became functus officio so far as the case was concerned and unless there was a fresh complaint or a fresh chargesheet no action in the matter could have been taken by the Sub-Divisional Magistrate. It was observed that as the order passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate and in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the case had not been discharged, would amount in law to a review of the Judgment of the Magistrate which was not permissible having regard to section 369 of the Code of Criminal Procedure. Section 369 provided that no Court when it had signed its Judgment, shall alter or review the same, except to correct clerical errors. 32. The High Court in the instant case followed the decision in Saraswatiben vs. Thakurlal Hitnatlal & Anr., reported in AIR 1967 Gujarat 263, holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on enquiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had discharged under section 251-A (2) Cr.P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio. The same view was taken in Amarjit Singh @ Amba vs. The State of Punjab, reported in Punjab Law Reporter Vol. 85 (1983) p. 324. 33. The above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of Sec. 319 had to be read in consonance with the provisions of Sec. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of Sec. 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Sec. 398 of the Code may not be lost Singh of. This should be so because the complainant's desire for vengeance has to be tempered with though it may be, as Sir James Stephen says; "The Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." (General view of the Criminal Law of England, p. 99). The A.P.P.'s application under Sec. 216, in so far as the appellants 1 to 3 were concerned could be dealt with under Sec. 216. Appellants 4 &5 could be dealt with neither under Sec. 216 nor under S. 319. In that view of the matter the impugned order of the Magistrate as well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside which we hereby do. The appeals are allowed to that extent. 7. In Sohan Lal's case (supra) one 'S' lodged an FIR alleging that the appellants and two others were pelting stones at the house of informant, thereby causing damage to it and injuring three women who were sitting at the chowk of the house. The appeals are allowed to that extent. 7. In Sohan Lal's case (supra) one 'S' lodged an FIR alleging that the appellants and two others were pelting stones at the house of informant, thereby causing damage to it and injuring three women who were sitting at the chowk of the house. After completing investigation the police framed charges under sections 147, 323, 325, 335 and 427 IPC and forwarded the charge sheet to the Judicial Magistrate under section 173 Cr.P.C. Taking cognizance and after hearing the arguments, the Judicial Magistrate discharged appellants 4 and 5 of all the charges and ordered that appellants 1, 2 and 3 be charged only under Section 427 IPC. Later, the Assistant Public Prosecutor submitted an application to the Magistrate under Section 216 Cr.P.C. signed by one of the Prosecution Witnesses, for amending the charge claiming that a prima facie case under sections 147, 325 and 336 IPC was made out. After hearing the parties, the Magistrate allowed the said application. This order was challenged before the High Court by way of Revision Petitions. The petitions were dismissed by the High Court, holding that it was not a case of reviewing the order of discharge passed by the Magistrate, but was a case of taking cognizance of the offence on the basis of evidence recorded by the Magistrate himself, which was not prohibited in law. It was also held that under Section 319 Cr. P.C. the Magistrate was fully competent to take cognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier. Aggrieved against the order of the High Court, the appellants preferred special leave petition before the Apex Court. Allowing the appeals, the Apex Court held that under Section 216 Cr.P.C., and to any charge' means the addition of a new charge. An alteration of a charge means changing or variation of an existing charge or making of a different charge. Addition to and alteration of a charge or charges implies one or more existing charge or charges. When the appellants 4 and 5 were discharged of all the charges and no charge existed against them, naturally an application under Sec. 216 Cr.P.C. was not maintainable in their case. Addition to and alteration of a charge or charges implies one or more existing charge or charges. When the appellants 4 and 5 were discharged of all the charges and no charge existed against them, naturally an application under Sec. 216 Cr.P.C. was not maintainable in their case. The Magistrate therefore while disposing of the application under Sec. 216 Cr.P.C. only had no jurisdiction to frame charges against the appellants 4 and 5. In his order the Magistrate did not say that he was proceeding suo motu against them though he said that Sec. 319 Cr.P.C. was also clear in this connection. The Apex Court observed that the provisions of Sec. 319 had to be read in consonance with the provisions of Sec. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of Sec. 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection' of the persons discharged subject to revision under Sec. 398 of the Code may not be lost sight of. This should be so because the complainant's desire for vengeance has to be tempered with. In the instant case it is apparent that the petitioner has not been heard while passing the order dated 1.4.2010 taking cognizance against him. 8. In view of the reasons mentioned above, I quash and set aside the order dated 1.4.2010 passed by the Addl. Sessions Judge (Fast Track) No.3 Bharatpur HQ Bayana in Sessions Case No. 27/2008 in respect of the accused petitioner allowing the application under Section 319 Cr.P.C. of the complainant, but remand the matter back to the Add!. Sessions Judge to decide the matter as a fresh after hearing the accused petitioner and the complainant within a period of 15 days. In case he reaches on the conclusion that the accused petitioner should be tried, in such circumstances he shall proceed in accordance with law. 9. With these directions this petition is disposed of accordingly.