JUDGMENT :

Shamim Ahmed, J.

1. Heard Shri Manoj Kumar Misra, the learned counsel for the applicant, Shri Aniruddha Singh, the learned A.G.A.-I for the State as well as Shri Hemant Kumar Mishra, the learned counsel for the complainant/ opposite party No. 2, and perused the record.

2. The applicant, Alok, has moved the present bail application seeking bail in F.I.R. No. 0261 of 2019, under Section 376-D I.P.C. read with Section 5(g)/6 of Protection of Children From Sexual Offences Act, Police Station Maholi, District Sitapur.

3. Learned counsel for the applicant further submits that the applicant is not named in the F.I.R. and he is innocent and has falsely been implicated in the present case. There is no role of applicant in the commission of offence. His name has been taken with malicious intention to falsely implicate and to defame the image of applicant and his family members in the society. The applicant has not committed rape as alleged by the prosecution. The victim has taken the name of applicant in her statement recorded under Section 164 Cr.P.C., only on the pressure created by her family members but no allegation of rape was made therein against the applicant. During the course of investigation no material was found against the applicant, as such his name does not find place in the charge sheet.

4. Learned counsel for the applicant submits that the name of applicant was surfaced in the statements of P.W.1 and P.W.2 during the course of trial. Thereafter, informant moved an application under Section 319 Cr.P.C., whereupon the learned Magistrate, without considering the evidence available on record, in a cursory manner, passed an order dated 24.03.2021, summoning the applicant to face the trial, thereafter, applicant surrendered before the court concerned on 05.10.2021 and since then he is in jail.

5. Learned counsel for the applicant further submits that the main accused, namely, Shivam, Suraj and Girdhar have already been granted bail by different coordinate Benches of this Court vide orders dated 30.05.2022 and 06.07.2022 passed in Criminal Misc. Bail Application Nos. 49, 2961 and 673, all of the year, 2022, respectively. The case of the applicant is not on the worse footing than that of the aforesaid co-accused, where named in the F.I.R. and have been granted bail by this Court, whereas the applicant was not named in the F.I.R. and his name was maliciously taken by P.W.1. and P.W.2 only within intention to implicate him falsely.

6. Learned counsel for the applicant further submits that the summoning order dated 24.03.2021 is also against the spirit of various judgments of Hon'ble Supreme Court. A Constitution Bench of Hon'ble Apex Court in paragraphs- 105 and 106 of its judgment in the case of Hardeep Singh Vs. State of Punjab & others, (2014) 3 SCC 92 has observed as under:-

"105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from