The discharge of accused based on extraneous and superficial considerations, and the illegality of re-opening the matter for consideration of charge after it has been framed by a trial judge.

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. 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