The main legal point established in the judgment is the requirement for strong and cogent evidence before summoning a non-accused person under section 319 Cr.P.C., and the importance of ascertaining the identity of the person before exercising the power under this section.

Rahul Chaturvedi, J.

1. Heard Sri Daya Shankar Mishra, learned counsel for the applicant assisted by Sri Chandrakesh Mishra, Sri Raj Kumar, learned counsel for the private opposite party and learned AGA at length.

2. The order impugned dated 24.08.2013 passed by learned Additional Session Judge, Court No. 2, Mau under section 319 Cr.P.C. in Session Trial No. 196 of 2010, State vs. Sanny and Others, under sections 363, 366, 376, 373. 373 IPC and 3, 4, 5, 6 and 7 ITP Act, P.S. Mau, District Mau is the core issue of the instant proceedings and it has been canvassed by learned counsel for the applicants that the same may be set aside.

3. On 09.04.2019 after hearing rival submissions of learned counsel, this Court was of the opinion that the instant application filed under section 482 Cr.P.C. deserves to be allowed and accordingly the application was allowed with a direction that the detailed reasons would follow shortly.

4. After efficaciously perusing the record, facts and circumstances of the case, submissions of the rival learned counsel for the contesting parties, the detailed reasons are mentioned.

5. By means of the instant application filed under section 482 Cr.P.C. the applicant is assailing the veracity and validity of order dated 24.08.2013 passed by Additional Session Judge, Court No. 2, Mau passed in S.T. No. 196 of 2010, State vs. Sanny and Another, under sections 363, 366, 376, 373, 372 IPC and 3, 4, 5, 6 and 7 of the ITP Act (herein referred to "ITP Act") P.S. Mau, District Mau whereby the applicant- Om Prakash S/o Lalchandra (non accused) and one Nisha D/o D/o Pratap Dhobi has been summoned by the trial court in exercise of power envisaged under section 319 Cr.P.C. to face the trial. Since the instant proceedings under section 482 Cr.P.C. is preferred by the applicant-Om Prakash, thus, the judgment confines to him only.

6. Before adjudicating the case it would be imperative to spell out the objectives and aims to understand section 319 Cr.P.C. which has also been vividly elaborated in catena of judgments passed by Hon'ble the Apex Court time and again. For ready reference, this Court feels it appropriate to peruse the provisions contained in section 319 Cr.P.C. for fair adjudication of the case on merits. The provisions of section 319 Cr.P.C. was enacted and incorporated to achieve the objective that, the real culprit should not get away unpunished. By virtue of these provisions, the Court is empowered to proceed against any person not shown as an accused, if it appears from evidence that a non accused person was also an active participant of that particular offence, then the courts are not powerless to summon that person and try together with other co-accused person. Courts are the sole repository of doing justice so that the rule of law should be upheld and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system, where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The legislation has empowered the courts by this additional power through the provisions of the aforesaid sections to fulfill the latin doctrine "litigantes ab c tibus summa debet non putat de manu mali legem" (unscrupulous litigants should not get away from the clutches of law).

7. Keeping in view the controversy involved in the instant case in the light of above doctrine behind section 319 Cr.P.C. it would be pertinent to mention that, responding to the application under section 319 Cr.P.C. by the informant Basanti Devi (opposite party no. 2) the applicant Jani alias Om Prakash S/o Lalchand R/o Mohall Shivdaspur (Red Light are, P.S. Maduadeeh, District Varanasi and Nisha D/o Pratap Dhobi R/o Mohalla Munshipura, P.S. Kotwali, District Mau were summoned to face trial along with other co-accused persons vide order impugned dated 24.08.2013 under the aforesaid sections of the ITP Act.

8. Before proceeding furth