JUDGMENT H. Baruah, J. 1. The order dated 16-03-2009 passed by the Additional District and Sessions Judge, Aizawl District, Aizawl in Criminal Trl. No. 6 of 2008 is under challenge in this revision, whereby and whereunder Respondents Lalremruata and Lalfakmawia are discharged from the liability of Section376 IPC. 2. The aforesaid Criminal Trial No. 6 of 2008 cropped up on filing of an FIR in writing by one Pi Kapthuami, President, MHIP, Venglai Branch, Kolasib with the Officer-In-Charge of Kolasib Police Station, wherein it has been alleged that the Respondent Lalremruata and his friend Lalfakmawia committed rape on Vanneihthangi, a girl of 8(eight) years during the year 2005-2006. It would be appropriate to say at this stage that Respondent Lalremruata is the father of the victim, Vanneihthangi. On filing of the FIR, Kolasib P.S. Case No. 109 of 2007 was registered under Section 376f IPC. Investigation commenced and during investigation the victim was examined under Section 164 Code of Criminal Procedure by a Magistrate. Both the Respondents were also arrested and medically examined. Victim Vanneihthangi was also examined medically by a doctor. After due investigation of the case a charge sheet under Section 173 was laid against the Respondent. 3. On filing of this criminal revision the LCRs were requisitioned for the purpose of disposal of the revision. LCRs are made available to this Court. 4. From the records of Criminal Trial No. 6 of 2008, it is noticed that on 31-10-07, the trial Court framed charge against the Respondents under Section 376 IPC. Both the Respondents pleaded not guilty to the charge and having claimed trial witnesses were directed to be summoned for the next hearing. The trial Court also as can be noticed from the records (LCRs) examined of the witnesses cited in the charge sheet. 5. By an order dated 21-11-2008 the case was transferred to the Court of District and Sessions Judge, Aizawl which was later endorsed to Sh. K.L. Liana, Additional District and Sessions Judge for disposal. The case proceeded with for examination of the witnesses. In order dated 20-1-2009 it is observed that the formal charge was not found in the record, therefore, next date 2-2-2009 was fixed for consideration of charge and ultimately by the order impugned herein both the Respondents were discharged. 6. The State of Mizoram being aggrieved thereby has approached this Court by filing this criminal revision. 7. In order dated 20-1-2009 it is observed that the formal charge was not found in the record, therefore, next date 2-2-2009 was fixed for consideration of charge and ultimately by the order impugned herein both the Respondents were discharged. 6. The State of Mizoram being aggrieved thereby has approached this Court by filing this criminal revision. 7. The sole ground of discharge of the Respondents is that they are not infected with HIV even after commission of rape on HIV infected victim by them. It is submitted by Mr. N. Sailo, learned P.P. representing the State of Mizoram that the ground for discharge is on extraneous consideration and such consideration should not crop up in view of the positive statement of the victim recorded under Section 164 Code of Criminal Procedure and other witnesses. That apart it is submitted by Mr. N. Sailo, that the learned Additional District and Sessions Judge, passed the impugned order without jurisdiction since a charge was already framed under Section 376 IPC against the Respondents on the basis of prima facie materials. Non availability of the formal charge form in the case record could not have given jurisdiction to the Additional District and Sessions Judge to consider the charge afresh. The best recourse for Addl. District and Sessions Judge, would have been to give notice to either party to record a formal charge form against the Respondents. It is also submitted that after framing of charge against the Respondents most of the prosecution witnesses were examined by the court. It is therefore, submitted by Mr. N. Sailo, that the learned Addl. District and Sessions Judge committed error and illegality in opening the case afresh and discharging the Respondents. Such a difficulty as appeared in the face of the record could have been corrected by recording a formal charge form against the Respondents. The order dated 31-10-2007 is specific that charge was framed on that day against the Respondents having found prima facie material to presume that they committed an offence under Section 376 IPC. 8. It is also found from the record as well as the order impugned that both the Respondents were also medically examined but they were not found infected by HIV while the victim was found infected by HIV. The reason for discharge given by the trial Judge is extraneous and superficial. 8. It is also found from the record as well as the order impugned that both the Respondents were also medically examined but they were not found infected by HIV while the victim was found infected by HIV. The reason for discharge given by the trial Judge is extraneous and superficial. A person may not be infected by HIV if sexual intercourse is done with a lady infected by HIV. From the statement of the victim recorded under Section 164 of the Code of Criminal Procedure it appears to this Court that she has made a categorical statement against Respondent Lalremruata and his friend Lalfakmawia that both committed rape on her not only once but several occasions. This being the statement available on record that too recorded under Section 164 Code of Criminal Procedure on the ground of non infection of Respondents by HIV, discharge of both the Respondents appear to be illegal. 9. Moreover, Mr. C. Lalramzauva, learned Sr. Counsel appointed as Amicus Curiae to assist the court also submits that once a charge is framed by a trial Judge, his successor being in the seisin of the matter cannot re-open the matter for consideration of charge and discharge the accused. Any difficulty appearing in the charge of this nature as indicated in the order dated 20-1-2009 could have been cured by the successor giving opportunity of being heard to either party. Mr. C. Lalramzauva, therefore, submits that the impugned order passed by the trial Judge is apparently illegal and cannot stand in the eye of law. 10. It is also submitted by him that the records speak of availability of sufficient materials to presume that the Respondents did commit offence under Section 376 IPC and, therefore, in view of the materials available, the Respondents could not have been discharged from the charge under Section 376 IPC. The Investigating Officer of the case having collected materials against the Respondents laid a charge under Section 173 of the Code of Criminal Procedure and the trial Judge after perusal of those materials framed charge against the Respondents under Section 376IPC and proceeded with the trial and examined some of the prosecution witnesses The ground of discharge which finds place in impugned order cannot take the base of discharge in view of the statement of the victim in particular recorded under Section 164 Code of Criminal Procedure. It is also submitted by him (Mr. C. Lalramzauva) that the reason given by the Addl. District and Sessions Judge appears to be superficial. 11. From the above it appears that the impugned order is illegal. There is no indication of preferring any revision against the order dated 3110-2007 by which charge was framed against the Respondents. Unless the order dated 31-10-2007 is set aside there can be no room for the successor or even for the trial judge to reconsider the charge against Respondents. The order dated 31-10-2007 being not disturbed by revisional Court, the impugned order appears to be illegal. 12. This Court finds no cogent and reasonable ground to allow the impugned order to subsist. The impugned order is accordingly set aside and quashed. 13. The case is remanded back to the trial Court to dispose of the same in accordance with law. The order dated 31-10-07 shall remain and if any difficulty appears, the same can be cured by giving notice to the parties. The trial Court shall proceed with the trial from the stage left by his predecessors in office. 14. Registry is directed to transmit back the records forthwith with a copy of this order to the trial Court. The trial Court after receipt of the records shall take steps for appearance of the Respondents and then proceed with the case in accordance with law. 15. This criminal revision accordingly stands allowed. 16. For rendering valuable assistance by Mr. C. Lalramzauva, learned Sr. Counsel as Amicus Curiae, Rs. 5000/- is quantified as his fee, which shall be paid by the Government of Mizoram.