The main legal point established in the judgment is that the power under section 319 of Cr.P.C. should be exercised sparingly and only when there is much stronger evidence than mere probability of complicity. The court emphasized the need for a stricter degree of satisfaction and the requirement of more than a prima facie case to invoke the power under section 319 of Cr.P.C.

JUDGMENT :

(Shree Prakash Singh, J.)

1. Heard Sri Aditya Vikram Singh, learned counsel for the applicant, Sri Aniruddha Kumar Singh, learned A.G.A.-I and Sri Sanjay Kumar Yadav, A.G.A. for the State.

2. Instant application has been filed with prayer to quash the order dated 11.12.2008 passed by Additional Sessions Judge FTC(III), Lucknow, in S.T. Case No. 119 of 2008 ( State Versus Smt. Asha Alias Sanjana and others), arising out of Case Crime No. 271 of 2007, under section 376, 120 B IPC, Police Station Naka, district Lucknow and further prayed that the operation, implementation and effect of the order dated 11.12.2008 passed by the Additional Sessions Judge / FTC-III, Lucknow may be stayed.

3. Factual matrix of the case is that first information report was lodged bearing case crime no. 271 of 2007, by the victim/prosecutrix at police station-Naka, District-Lucknow under section 376 of IPC, wherein, Asha @Sanjana and two unknown persons were implicated. It has been alleged in the first information report that the prosecutrix was traveling with one Asha @ Sanjana on 27.07.2007 and while reaching at Charbagh Railway Station, she met with two other unknown persons, though were known to Asha @ Sanjana and they took away the prosecutrix along with Asha to nearby hotel and thereafter, they committed rape with her.

4. From perusal of the order sheet, it is evident that on 20.10.2022, this Court has passed the order and noted that from perusal of the report dated 22.01.2020 submitted by the Chief Metropolitan Magistrate, Kanpur Nagar reveals that the victim in this case has changed her place of residence and shifted to some other un-known place, which is not known to anyone and under the aforesaid circumstances, the notice could not be served. Now this Court is proceeding in the matter.

5. After thorough investigation in the matter, the chargesheet was filed on 08.10.2007, under section 376 and 120B of IPC, against Asha @ Sanjana and Sagar Sinha and during course of the trial, which was numbered as Sessions Trial No. 119 of 2008 (State Vs Smt Asha @ Sanjana and others), an application was instituted by the prosecutrix under section 319 of Cr.P.C., on 29.08.2008, with prayer to summon Manish Dubey and Rajesh Yadav, as accused persons, who basically said to have committed rape upon prosecutrix, on the date of the incident. The application moved by the prosecutrix was allowed by the Sessions court, vide order dated 11.12.2008, whereby, the applicant as well as one other accused, has been summoned. Therefore, the order dated 11.12.2008, which was passed in application under section 319 of Cr.P.C., is under challenge, in the present matter.

6. Contention of learned counsel for the applicant is that the learned trial court summoned the applicant, without there being any evidence against him, as from bare perusal of order dated 11.12.2008, it reveals that learned Sessions Judge, after the application, moved by the prosecutrix under section 319 of Cr.PC, conducted an inquiry of his own by seeking internal report from some officer of the department of the Indian Railways and on the basis of said internal communication between the learned trial court and the Railways, the applicant has been summoned.

7. Adding his arguments, he submits that learned trial court travelled beyond its jurisdiction and on the basis of presumption, has given its finding that since the applicant was working as Travelling Ticket Examiner (T.T.E.), on the date of Incident and therefore, he must be the person, who committed rape with the prosecutrix and not actually the person who are named in the first information report. Further, has also been assumed by the trial court that once the applicant would be produced before the prosecutrix, she could identify the present applicant as being involved in the offence. He submits that so far as the statement of the prosecutrix is concerned, she initially named some other accused namely, Sagar Sinha and thus, there was no reason