The court emphasized that a prospective accused can only be summoned under Section 319 Cr.P.C. if strong and cogent evidence emerges, not merely based on allegations or inconsistencies in witness statements.

JUDGMENT :

(Rajeev Misra, J.)

1. Challenge in this criminal revision is to the order dated 02.11.2022 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No. 22 Kanpur Nagar in Special Sessions Trial No. 457 of 2019 (State Vs. Anurag and others) under Sections 376 DA I.P.C. and Section 17 read with Sections 5/6 POCSO Act, Police Station Kakadev, District-Kanpur Nagar, whereby the application dated 19.08.2022, under Section 319 Cr.P.C. (Paper No. 9 Ka) filed by the prosecution/first informant has been allowed and consequently, revisionist Nisha Singh, who is a prospective accused (not named in the F.I.R.), has been summoned under Section 109 I.P.C. read with Section 376 DA I.P.C. and Section 17 read with Sections 5/6 POCSO Act to face trial in aforementioned Special Sessions Trial.

2. Perused the record.

3. I have heard Mr. L. M. Singh, the learned counsel for revisionist, the learned A.G.A. for State, opposite party-1 and Ms. Seema Pandey, Advocate, who has put in appearance on behalf of opposite party-3, High Court Legal Services Committee, Allahabad

4. Present Criminal Revision came up for admission on 17.03.2023 and this Court passed the following order:

“Heard.

Learned A.G.A. has accepted notice on behalf of State.

Issue notice to opposite party no. 2 to 4 returnable at an early date. Put up this case in the week commencing 17.04.2023 as fresh.

Order Date :- 17.3.2023”

5. As per office report dated 03.08.2023, notice has been served upon first informant/opposite party-2. However, in spite of service of notice neither any counter affidavit has been filed by opposite party-2 nor anyone has appeared on her behalf to oppose this criminal revision.

6. It transpires from record that in respect of an incident, which is alleged to have occurred on 25.12.2018, a delayed F.I.R. dated 26.12.2018 was lodged by first informant Smt. Mona Gaur (mother of the prosecutrix) and was registered as Case Crime No.381 of 2018 under Section 376D I.P.C. and Sections 3/4 POCSO Act, Police Kakadev, District-Kanpur Nagar. In the aforesaid F.I.R. four persons namely Anurag, Jaiki, Abhishek and Shubham have been nominated as named accused.

7. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Anurag enticed away the minor daughter of first informant namely X i.e. the prosecutrix and thereafter all the named accused dislodged her modesty by forcibly committing rape upon her one by one.

8. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C.. He recorded the statement of prosecutrix under Section 161 Cr.P.C., copy of which is on record at page 57 of the paper book. The prosecutrix in her aforesaid statement has fully supported the F.I.R. but she has not stated anything adverse against present revisionist Nisha Singh. For ready reference, the same is extracted herein under:-

9. After aforesaid statement of the prosecutrix was recorded, her statement, under Section 164 Cr.P.C. was recorded on 04.01.2019. The same is on record at page 70 of the paper book. The prosecutrix, in her aforesaid statement, has departed from her previous statement recorded under Section 161 Cr.P.C. and has now alleged that she, named accused and the present revisionist, consumed coffee. However, she was offered another cup of coffee by revisionist Nisha Singh, whereafter, she started feeling dizzy. Except for the aforesaid recital occurring in her afore-mentioned statement, nothing else has been stated by the prosecutrix against present revisionist. It is, therefore, worthwhile to reproduce the statement of the prosecutrix recorded under Section 164 Cr.P.C. Accordingly, the same is reproduced herein below:-

10. In spite of the fact that statements of the prosecutrix were recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. yet for reasons best known to the Investigating Officer, he recorded the second statement of prosecutrix, under