The invocation of Section 319 of the Cr.P.C. necessitates strong evidence beyond a prima facie case; mere allegations without substantiation are insufficient for summoning a person as an accused.

ORDER :

M. NIRMAL KUMAR, J.

1. The petitioner/Accused No.2 in Spl.S.C.No. 144 of 2021 had filed this petition challenging the order passed in Crl.M.P.No.1615 of 2021 dated 11.05.2023 impleading the petitioner as Accused No.2 by invoking Section 319 of Cr.P.C.

2. The second respondent/Accused No.1 in Spl.S.C.No.144 of 2021 filed a petition under Section 17 3(8) of Cr.P.C. in Crl.M.P.No.1615 of 2021 to conduct further investigation in the case for the reason that he has been victimized by selective prosecution by the investigating officer. Further from the statement recorded under Section 16 1 Cr.P.C. of Mrs.Preethy Narayanan/petitioner herein, Mrs.Periya Nayagi and Mrs.Saraswathy, it is clear that these persons have committed offences under Sections 16 , 17, 19 and 21 of the Protection of Children from Sexual Offences Act (hereinafter 'POCSO Act') for abetment and non reporting of commission of offence under POCSO Act. The trial Court, by order dated 11.04.2022, though found that ordering further investigation at the instance of accused is abuse of process of law and it will cause only delay and petition under Section 17 3(8) of Cr.P.C. cannot be entertained, but ordered to summon the petitioner as an accused by invoking Section 319 of Cr.P.C. Aggrieved against the same, the petitioner preferred a revision before this Court in Crl.R.C.No.930 of 2022. This Court, by order dated 15.07.2022, set aside the order passed by the trial Court insofar as impleading the petitioner as an accused in the case and remitted back Crl.M.P.No.1615 of 2021 to the trial Court for fresh disposal. Further impleaded the petitioner as second respondent in the said Crl.M.P.No.1615 of 2021 and directed the trial Court to give an opportunity to the petitioner to file her counter and make her submissions and thereafter to take a decision as to impleading the petitioner in accordance with law. Further confirmed the finding of the trial Court with regard to the non requirement of further investigation. Thereafter, the trial Court again heard the petition in Crl.M.P.No.1615 of 2021 and passed the impugned order dated 11.05.2023. The trial Court came to the conclusion that there is a prima facie case made out against the petitioner to summon her as an accused under Section 319 Cr.P.C. passed the impugned order.

3. The primary ground on which the petition has been filed by second respondent/A1 is that the child victims in this case, who are ex- students of Maharishi Vidhya Mandir School, Chetpet, Chennai, had stated that the victims reported the sexual assault committed by the second respondent to the school management, namely, Mrs.Preethi Narayanan (petitioner)/L.W.22, Mrs.Periyanayagi/L.W.20, Mrs.Saraswathi/L.W.7 and Mr.Namachivayam (who is no more) and as per Section 21 of the POCSO Act, any person, who fails to report the commission of offence under Section 19 or 20 of the POCSO Act, is bound to be prosecuted and punished, is not sustainable, for the reason except for a passing reference by the de-facto complainant and another victim, no other witnesses spoke against the petitioner and there is no material against her.

4. The learned counsel for the petitioner submitted that the petition filed by A1/second respondent herein is nothing but, are with diversionary facts to prolong the trial. An accused have no right to file application seeking further investigation and the petition ought to have been dismissed in limine. Further the accused/A1 after filing of