The power under Section 319 Cr.P.C. is discretionary and extraordinary, to be exercised sparingly and only with strong and cogent evidence, stronger than a prima facie case but short of satisfaction leading to conviction.

JUDGMENT

Rajesh Bhardwaj, J. - Petitioner has approached this Court impugning the order dated 10.01.2022 whereby, the learned trial Court has dismissed the application filed by the prosecution under Section 319 Cr.P.C. for summoning of respondents No.2 to 4.

2. Learned counsel for the petitioner has submitted that the learned trial Court has fallen in error in declining the application filed under Section 319 Cr.P.C. for summoning of respondents No.2 to 4. He submits that at the time of lodging of the FIR, the prosecutrix had specifically mentioned the name of the accused/respondents No.2 to 4 that they connived with the main accused and thus, facilitated the rape committed upon the prosecutrix by the co-accused Ramandeep Singh. He further submits that the prosecutrix has also supported the case of the prosecution at the time when her statement under Section 164 Cr.P.C. was recorded. He submits that however, the investigating agency for the reasons best known to it, exonerated the respondents from the offence committed by them and thus, filed the challan only qua co-accused Ramandeep Singh. He submits that at the time of recording of the evidence, the prosecutrix was examined as PW-1 and she reiterated the allegations against the respondents and thus, the complicity of the respondents No.2 to 4 is established beyond reasonable doubt but the trial Court has failed to appreciate the same. He has submitted that in view of the settled law, the trial Court had ample power under Section 319 Cr.P.C. for summoning the accused to face the trial along with the coaccused.

3. I have heard counsel for the petitioner and perused the record.

4. Evidently, the prosecutrix is minor and the respondents were the main accused in the FIR No.102 dated 23.06.2020, under Sections 363, 376(2)N, 376(3), 506 of IPC and Section 6 of POCSO Act, 2012, registered at Police Station Anaj Mandi, Patiala. Though, respondents No.2 to 4 were accused in the FIR, however, after the investigation, they were found innocent and thus, kept in column No.2. As per the facts of the case, both the respondents namely, Harbhajan Kaur and Surjit Singh @ Kukku were present in the house when co-accused Ramandeep Singh threatened the victim and took her to his house on March 17, 2020 then on May 20, 2020 and on June 20, 2020 i.e. on three occasions, she was repeatedly being taken by force by the co-accused Ramandeep Singh. Respondent No.2 who is the mother of Ramandeep Singh allegedly gave intoxicating substance in the milk to the prosecutrix and thereafter she became unconscious and then, she was sexually exploited by Ramandeep Singh. Perusal of the statement under Section 164 Cr.P.C. would show that there was no whisper regarding giving any intoxicating substance in the milk by respondent No.2-Harbhajan Kaur. However, while deposing before the trial Court as PW-1, the prosecutrix again made improvements by deposing about having been administered the intoxicating material in the milk by him. Besides this, the role assigned to the other accused was their presence at the time of occurrence. There are material improvements in her statement at every stage. The controversy involved in the present case is regarding summoning of respondents No.2 to 4 under Section 319 Cr.P.C. and hence, the appreciation of Section 319 Cr.P.C. becomes essential. The statutory provisions of Section 319 Cr.P.C. reads as under:-

'319. Power to proceed against other persons appearing to be guilty of offence-

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court alt