Mehtab S. Gill, J.
1. The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure for setting aside the orders dated September 6, 1997 passed by the Judicial Magistrate 1st Class, Fazilka (Annexure P2) and May 6, 1999 rendered by the Additional Sessions Judge, Ferozepur (Annexure P3).
2. As per the prosecution, First Information Report No. 81 dated May 13, 1995 under Sections 454/380/440/448/427/148/149 I.P.C. was registered at Police Station Sadar Fazilka against Jagar Singh, Malkiat Singh, Surjit Singh, Karnail Singh, Mahindro Bai and Dalip Singh on the statement of Harbans Lal Sarpanch. During the course of investigation, the police found Mahindro Bai and Dalip Singh, present petitioners, as innocent and has shown them in column No. 2 in the challan. Statement of P.W.1 Harbans Lal was recorded by the Judicial Magistrate Ist Class, Fazilka on August 28, 1996 in which he stated that Joginder Singh, Phuman Singh and Ram Kishan members panchayat came to his house and told him that accused Jagar Singh, Malkiat Singh, Surjit Singh, Karnail Singh, Dalip Singh and Mahindro Bai had made an opening in the room of the Panchayat Ghar after breaking the wall of the Panchayat Ghar. He accompanied them to the place of occurrence and saw that the bricks of the wall had been removed and there was an opening in the wall. He then alongwith members panchayats went to the house of the accused persons and saw that the bricks were lying in the house. All the accused belong to a single family.
3. An application under Section 319 Cr. P.C, was moved by the Assistant Public Prosecutor to summon the two petitioners because they were shown in column No. 2 and had not been challaned. The Judicial Magistrate Ist Class, Fazilka after hearing arguments of Assistant Public Prosecutor and the counsel for the petitioners dismissed the application vide his order dated January 10, 1997.
4. The case proceeded further. On April 8, 1997, Joginder Singh appeared in the witnessbox as P.W.3 and deposed that on reaching the Panchayat Ghar, he saw that Surjit Singh, Malkiat Singh, Jaggar Singh, Karnail Singh, Mahindro Bai and Dalip Singh were breaking the wall of the building with Sabbals (Crowbars).
5. After the statement of Joginder Singh was recorded, the learned Assistant Public Prosecutor moved another application under Section 319 Cr.P.C. for summoning the petitioners. The Judicial Magistrate Ist Class, Fazilka after hearing arguments of counsel for the petitioners and the Assistant Public Prosecutor allowed the said application vide his order dated September 6, 1997 (Annexure P2) and ordered the summoning of Dalip Singh and Mahindro Bai petitioners, to face trial alongwith their coaccused, by observing the Joginder Singh P.W.3, who was an eye witness clearly stated that the petitioners had demolished the wall.
6. Aggrieved by the order of Judicial Magistrate Ist Class, Fazilka, Annexure P2, the present petitioners filed a revision petition. They took up the plea that the State having not filed any revision against order, Annexure P1, the same had attained finality and the principles of res judicata applied in the case. The learned Additional Sessions Judge, Ferozepur endorsed the findings recorded in Annexure P2 and dismissed the revision petition vide his order dated May 6, 1999 (Annexure P3).
7. The petitioners, being not satisfied with the order Annexure P3, have filed this petition before this Court.
8. I have heard learned counsel for the accusedpetitioners and the learned counsel for the State assisted by Shri V.K. Chabbra, Advocate and carefully perused the record.
9. JUDGMENT Annexure P1, was passed by the Judicial Magistrate Ist Class, Fazilka after going through the evidence of P.W.1 Harbans Lal wherein he clearly stated that Joginder Singh told him that the present petitioners Mahindro Bai and Dalip Singh had broken the wall; that he went to the house of the accused and saw the bricks lying in the house and that as all the accused belonged to one family, it was presumed that these bricks were brought by them after demolishing the wall of the Panchayat Ghar. The learned Judicial Magistrate Ist Class, Fazilka after applying his mind to the facts and circumstances as also evidence of Harbans Lal did not summon the accusedpetitioners as there was not sufficient evidence to do so. The statement of P.W.1 Harbans Lal was hearsay though he had seen the stolen bricks in the house of the accused. The State did not go in revision and, thus, the order Annexure P1 has become final. JUDGMENT dated September 6, 1997, Annexure P2 could not have passed merely on the ground that eye witness Joginder came in the witness box and his statement was sufficient to summon the petitioners under Section 319 Cr.P.C. The State having not challenged the order, Annexure P1, now cannot turn around and say that there is more evidence on the record warranting the summoning of the petitioners. The principal of res judicata apply in this case and the sword of summoning cannot be allowed to hang on the heads of the petitioners for indefinite time.
10. For the above conclusion of mind, I am fortified by the decision of this Court in Birhma Nand v. Seelak Ram, 1993(2) Criminal Court Judgments page 390 in which it was held as under :
"After hearing the learned counsel for the parties, I hold that the second application under section 319 of the Code of Criminal Procedure filed by the prosecution, is barred by the principles of res judicata. The first application under Section 319 of the Code of Criminal Procedure filed by the prosecution was dismissed on 981990. Therefore, keeping in view the principles of res judicata the Additional Sessions Judge III, Rohtak, has no jurisdiction to summon Brihma Nand petitioner and Dalbir under Section 319 of the Code of Criminal Procedure. The order dated 9.8.1990 passed by the Judicial Magistrate 2nd Class Rohtak, on the application filed by the prosecution under section 319 of the Code of Criminal Procedure, has become final between the parties and the Additional Sessions Judge III, Rohtak, has no jurisdiction to pass the impugned order dated 16.12.91."
11. In the light of above discussion, this petition is accepted and the orders, Annexures P2 and P3 are set aside.
