ORDER

This revision is arising out of the order passed in S.C.No.39 of

2012, dated 27.09.2021, on the file of the learned Additional Sessions Judge, Virudhunagar, thereby withdrawn the notice issued to the accused with regard to alteration of charges.

2.The petitioner is the complainant. He lodged a complaint alleging that on 17.06.2011, at about 05.45 p.m., the brother of the petitioner came to his shop and thereafter, he left from the shop by his cycle. At that time, all the accused persons surrounded his brother and shouted that he is interfering in the affairs and creating problems. Immediately A.4 stabbed the deceased on his chest with a knife and A.6 stabbed on his cheek with knife. The deceased fell down and died on the spot. It was registered in Crime No.984 of 2011 for the offences under Sections 147, 148, 341 and 302 of I.P.C. After completion of investigation, the first respondent filed a final report and the same has been taken cognizance in S.C.No.39 of 2012 on the file of the learned Additional Sessions Judge, Virudhunagar and the final report has been filed as against the juvenile before the Juvenile Justice Board and the same has been taken cognizance in J.C.No.82 of 2013 on the file of the Juvenile Justice Board, Virudhunagar.

3.There are totally six accused in which the trial Court framed charges for the offence under Section 147 of I.P.C as against A.1 to A.3, for the offence under Section 148 of I.P.C as against A.1 and A.2, for the offence under Section 341 of I.P.C as against A.1 to A.3, for the offence under Section 342 of I.P.C as against A.2 and A.3, for the offence under Section 149 r/w 302 of I.P.C as against A.1 to A.3, for the offence under Section 307(1)(2) of I.P.C as against A.2, for the offence under Section 324 of I.P.C as against A.2 and for the offence under Section 120(b) r/w 302 of I.P.C as against A.4 to A.6.

4.After examination of prosecution witnesses, the petitioner filed a petition in Cr.M.P.No.1317 of 2017 under Section 216(1) of Cr.P.C to add further charges, that too, after filing the written arguments on either side on the ground that the evidence of P.W.1 and P.W.2 would disclose that all the accused persons formed an unlawful assembly waylaid the deceased while he was riding his bicycle. A2, A.4 and A.5 shouted that the deceased is interfering in their affairs and creating problems. So instigated others to kill the deceased. Immediately A.4 stabbed the deceased with his knife in the centre of the chest and A.6 stabbed the deceased on his chin with knife. Immediately the deceased fell down and lost his breath. The above overt act is attributed by P.W.1 and P.W.2 in their evidence which closely and distinctly established the charges under Sections 147, 148, 149, 341, 302, 109 of I.P.C r/w 34 of I.P.C. Therefore for proper appreciation of evidence, the charge should be framed against all the accused persons to be altered. The trial Court by order dated 22.12.2017 dismissed the said petition for the reason that the petition filed under Section 216 of Cr.P.C can be invoked by a criminal Court at any time before the judgment is delivered, if the circumstances warrant, and that Section 216 of Cr.P.C does not enable or empower the prosecution or the accused or the defacto complainant to require the Court to exercise such power. Aggrieved by the same, the petitioner did not prefer any revision. While being so, on 22.01.2020, the trial Court issued show cause notice to Accused Nos.1 to 6 as to why the additional charges should not be framed in the interest of justice. On receipt of the same, all the accused persons filed their objections. On receipt of the objections, the trial Court passed the impugned order thereby withdrawn the show cause notice issued to the accused persons and decided not to frame additional charges, since it would amount to second trial for the very same set of charges.

5.The learned counsel appearing for the petitioner would submit that P.W.1 and P.W.2 disclose that A