JUDGMENT :

1. Heard Sri Ravindra Prakash Srivastava, learned counsel for the applicant and Sri R.P. Mishra, learned A.G.A. for the State as well as perused the record.

2. The present application has been filed by the applicant-Suneeta Pandey for quashing of the impugned order dated 03.12.2018, whereby the applicant has been summoned to face the trial u/s 376-D, 212 IPC in exercise of power conferred under Section 319 Cr.P.C. as well as entire proceedings of Special Criminal (Sexual) Case No.08 of 2016 (State Vs. Fanindra Mani Ojha alias Dablu and others) arising out of Case Crime No.874 of 2015, under section 376-D & 212 I.P.C., Police Station-Kotwali Bansi, District-Siddharth Nagar, pending in the court of Additional District and Sessions Judge-Ist, Siddharth Nagar with a further prayer to stay the further proceedings of the aforesaid case.

3. As per F.I.R., the incident took place on 24.06.2015 and the F.I.R. was lodged against unknown persons on 28.07.2015 bearing Case Crime No. 874 of 2015, under Sections 363 and 366 I.P.C. alleging therein that someone has enticed away the daughter of the informant aged about 15 years and took her with him.

4. Statement of the victim has been recorded under Section 161 and 164 Cr.P.C. The victim in her statement recorded under Section 164 Cr.P.C. has stated that applicant was involved in the alleged incident but the applicant was not named in the charge sheet. Thereafter, opposite party no.2 filed an application under Section 319 Cr.P.C. for summoning the applicant and the court below vide order dated 03.12.2018 has summoned the applicant to face trial for the offence under Sections 376-D and 212 Cr.P.C. It is this order which is subject matter of challenge before this Court.

5. Learned counsel for the applicant submitted that the applicant is a lady hence no offence under Section 376-D I.P.C. is made out against the applicant and she has been wrongly summoned by the trial court. It is further argued that the applicant has been summoned in exercise of powers conferred under Section 319 Cr.P.C. solely relying upon the statement of Victim (P.W-1) as well as some other extraneous documents, which in fact is not sufficient. He contends that in view of the aforesaid facts and circumstances, the impugned order under challenge is vitiated by manifest error of law and amounts to blatant miscarriage of justice, and, therefore, is liable to be quashed.

6. Learned counsel for the applicant has further argued that the trial court has grossly erred in summoning the applicant for the offence punishable under Section 376-D IPC and Section 212 IPC. It is argued that a woman cannot commit rape and therefore, she cannot be prosecuted for gang rape because woman cannot be said to have an intention to commit rape. In support of his submission, he relied upon a decision of Hon'ble Supreme Court in Priya Patel Vs. State of M.P. and another, (2006) 3 SCC (Cri.) 96. He has further relied upon the judgment of the Apex Court in the case of State of Rajasthan Vs. Hemraj & Another reported in 2009 (12) SCC 402. It is also submitted that the applicant cannot be held guilty even in terms of the explanation to Section 376(2)(g) of IPC.

The extract of Section 375 & 376(2)(g) IPC prior to amendment is as under:-

375. Rape :-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--

First.--Against her will.

Secondly. --Without her consent.

Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication