The main legal point established in the judgment is the requirement of the existence of a prima facie case for summoning the accused under Section 319 of the Cr.P.C.

Vinod Prasad,J.

This petition relates with an offence under sections 363, 366, 376 IPC, S.T. No.881 of 2005, P.S. Sikhera, District Muzaffarnagar pending before Additional Sessions Judge F.T.C.-3, Muzaffarnagar.

2. Heard learned counsel for the applicant and the learned AGA.

3. Looking to the gravity of the offence vide paragraph 2, the applicant seems to be aggrieved by the order dated 21.11.2005 vide annexure no.9 passed by the learned trial Judge. By the said impugned order, Sessions Judge F.T.C. Muzaffarnagar has exercised the discretionary power on the basis of evidence tendered before him and has summoned Babloo and Om Prakash to stand the trial along with already being tried accused for the aforesaid offence of kidnapping, abduction and rape. The aforesaid order was passed on the strength of the testimony of P.W.1 Raj Kumar and P.W.2 Pratima in her examination-in-chief. In her testimony before the Court, victim has testified that her chastity was ravished also by Om Prakash and Babloo and, therefore, she anointed the guilt of gang rape upon the applicant. Victim was 16 years of age and she was kidnapped from lawful guardianship of her father informant Raj Kumar. In that respect F.I.R. was got registered under sections 363 and 366 IPC. During investigation, victim was recovered and her statement was recorded, medical examination was conducted and X-Ray was also prepared. Wrapping up the investigation, only a single accused Bhushan was charge sheeted under section 363, 366, 376 IPC. He was charged with the aforesaid crime. Informant father Raj Kumar was examined as P.W.1, who supported his F.I.R. version. Victim was examined as P.W.2, who in her examination-in-chief categorically anointed the allegation of rape by Om Prakash and Babloo as well and, therefore, her examination-in-chief makes it evident that she was gang raped. Other witnesses during their interrogatory statement under section 161 Cr.P.C. has also disclosed the case being a offence of gang rape. No reason was given by the I.O. for not charge sheeting accused Om Prakash and Babloo. Looking to the evidences given in the court and the attending facts that the learned trial Judge rightly exercised his discretion in summoning non charge sheeted accused Om Prakash (present applicant) and Babloo to stand trial along with Bhushan for abduction, kidnapping and rape.

4. After going through the record of this 482 Cr.P.C. application, I do not find any error, which has been committed by the learned trial Judge in summoning the accused to stand trial including the applicant for the aforesaid offence. At this stage of summoning under section 319 Cr.P.C. only this much has to be seen, as to whether the accused desired to be summoned has committed offence, which can be tried along with already being tried accused or not? At that stage, no detail examination of evidences is required. Learned trial Judge is expected to exercise discretion in accordance with law but within the periphery of section 319 Cr.P.C. For better standing, Section 319 Cr.P.C. is referred below: -

"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. x .. x ..

x …. x …. X…. x….

5. Perusal of the aforesaid section makes it evident that if it appears from the evidence that any person not being an accused has committed any offence for which such person can be tried together with other accused, the court may proceed against such person for committing the offence, which he appears to have been committed by him.

6. Section refers to the word 'appears' twice. The word 'appears' means existence of only a prima facie case which if remains unrebutted will definitel