Sandeep Mehta, J.

1. Heard.

2. These two instant miscellaneous petitions are being decided by this common order as they involve common question of law.

3. The miscellaneous petitions have been filed by the petitioners in connection with the Criminal Case No.778/2010 pending in the Court of the learned Additional Chief Judicial Magistrate (Economic Offence), Jodhpur. The petitioners Nath Mal and Rajesh were facing trial for the offences under Sections 336/34 IPC. The accused Sandeep was also named in the FIR but he was not charge-sheeted by the police. Thereafter, when the evidence of the witnesses was recorded at the trial, the complainant filed an application under Section 319 read with 190 Cr.P.C. praying that the accused Nathmal and Rajesh be charged for the offence under Section 452 IPC and the left out accused Sandeep be summoned as an additional accused to face the trial. The trial court rejected the application filed by the prosecution by order dated 29.9.2010. The complainant challenged the order of the Magistrate by filing a revision and the revisional court accepted the complainants revision and directed the trial court to pass a fresh order in the matter. Upon remand, the trial court by its order dated 24.4.2012 has taken cognizance against the accused for the offences under Sections 452 and 323 IPC and also directed summoning of co-accused Sandeep for the said offences. Now, S.B. Crl. Miscellaneous Petition No.1275/2012 has been filed against the order dated 24.4.2012 passed by the learned Magistrate whereby the application seeking discharge filed by the accused under Section 239 Cr.P.C. has been rejected and S.B. Crl. Miscellaneous Petition No.544/2012 has been filed by the three accused challenging the order passed by the learned Magistrate whereby the prosecutions prayer under Sections 319 and 190 Cr.P.C. has been accepted and the accused Sandeep has been summoned.

4. Learned counsel for the petitioners submits that there is sufficient material on the record of the case to connect the petitioners with the alleged crime so far as the offence under Section 452 IPC is concerned. He further submits that the accused Sandeep was just 13 years of age and, therefore, the trial court has committed grave error in summoning him. He thus prayed that the orders impugned deserve to be quashed.

5. Per contra, learned counsel for the respondent no.2 submits that the prosecution right from initiation came with the case that the accused trespassed into the house of the complainant and assaulted him. Sandeep was named in the FIR but the police without any justification, did not file any charge-sheet against him. He, however, concedes that if the accused Sandeep is below 18 years of age, he cannot be tried by the Munsif Court and his case has to be tried by the Juvenile Justice Board.

6. Heard and considered the arguments advanced at the bar and perused the impugned orders as well as documents filed on record.

7. From a perusal of the material available on the record, it is clear that the order dated 15.9.2011 passed by the learned Magistrate so far as the additional charges have been framed against the accused under Sections 452/323 IPC is concerned, the same was not challenged by the accused and, therefore, it has attained finality and, therefore, the accused are not entitled to challenge the same. Therefore, the learned Magistrate rightly rejected the application of the accused filed under Section 239 Cr.P.C. by order dated 24.4.2012. Hence, the miscellaneous petition no.1275/2012 is without any force and is hereby dismissed. Stay Petition No.1683/2012 also stands dismissed.

8. However, coming to the question of summoning of the accused Sandeep as an additional accused in the case, this Court feels in view of the contention advanced at the bar that the accused was a juvenile on the date of the offence, the learned trial court has to be given direction that before proceeding against the said accused, it shall hold an enquiry about the age and if his age is found to be below 18 years on the date of occurrence, then the proceedings against the accused Sandeep shall be taken in accordance with the provisions of Juvenile Justice Act. With these directions, the miscellaneous petition no.544/2012 is disposed of. Stay Petition No.712/2012 also stands disposed of.

Petition No. 544/2012 disposed of and Petition No. 1275/2012 dismissed.