Hon'ble CHAUHAN, J.—The petitioners are aggrieved by the order dated 29.4.2009, passed by the Additional Sessions Judge, Sangaria, whereby the learned Judge has framed the charges for offences under Sections 307 IPC, and alternative under Section 307 read with Section 34 IPC.

2. The brief facts of the case are that on an oral statement given by Jagdish Chand, respondent No.2, the SHO Police Station, Sangaria, registered a case for offences under Sections 323, 447 and 379 IPC. During the course of investigation, an offence under Section 307 IPC was added. According to the complainant, Jagdish Chand, in the evening of 14.7.2008, while he sowing the field, Makhan Singh, Gurdeep Singh and Hardeep Singh came to the field. They tried to stop him from sowing the field. While Makhan Singh hit him over the head with a Kansia (a sharp edged weapon), Hardeep Singh hit him with a lathi on his arm which broke his arm, and Gurdeep Singh also hit him with a lathi on his right arm and also on his back. Due to these injuries, he fell down and fainted. He was initially taken to his house, and thereafter to the hospital where his statement was recorded. It is, on the basis of this statement, that the Police registered a formal FIR, FIR No. 299/2008, for offences under Sections 323, 447 and 379 IPC. Although the Police filed a charge-sheet against the present petitioners for the offences under Sections 323, 324, 325, 307 and 379 IPC, it did not file any charge-sheet against Makhan Singh. Vide order dated 29.4.2009, the learned Judge framed the aforementioned charges. Hence, this petition before this Court.

3. Mr. Anil Upadhyay, the learned Public Prosecutor has raised a preliminary objection with regard to the maintainability of the petition. For, according to him, the learned trial Court has already recorded the testimonies of four witnesses. Since the testimonies are being recorded by the trial Court, according to the learned Public Prosecutor, this case has become infructuous. Therefore, it deserves to be dismissed as infructuous.

4. On the other hand, relying on the case of Udai Singh and Anr. vs. State of Rajasthan (2011(1) Cr.L.R. (Raj.) 161), Mr. Pradeep Shah, the learned counsel for the petitioners, has vehemently contended that merely because the testimonies are being recorded by the learned trial Court, it would not make the petition infructuous. According to the learned counsel, a case becomes infructuous only when the relief sought by the petitioner is granted prior to the hearing of the case, or if the relief sought cannot be given due to change in the circumstances. However, in the present case, neither the relief has been granted, nor the circumstances have changed to such an extent so as to deny the grant of the relief. Secondly, the learned counsel for the petitioners has contended that the charges framed by the learned trial Court are legally unsustainable. Thus, it is an illegal order. Therefore, merely by flux of time an illegal order does not become legal one. The illegality of the order continues to be the same and needs to be examined by this Court. Thirdly, there is no bar contained either in Section 397 or in Section 401 Cr.P.C., which debars this Court from hearing a revision petition merely because the testimonies are being recorded by the learned trial Court.

5. In rejoinder, the learned Public Prosecutor has contended that although there may not be a bar in law, but a norm has been evolved by this Court that in case the charge order is under challenge, and if the testimonies are being recorded, this Court would not interfere with the charge order.

6. Heard the learned counsel for the parties on the preliminary objection.

7. In the case of Udai Singh (supra), this Court has observed as under :

Therefore, irrespective of the fact that trial has commenced and couple of witnesses might have been examined by the learned trial Court merely on account of lapse of some time since filing of the present revision petition on 15.5.2009

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