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16. Mr. Rajiv Lochan Shukla, the learned counsel for applicants contends that order impugned dated 02.02.2021, passed by court below is manifestly illegal and without jurisdiction. It is next contended that applicant-1, Rohit Kumar Yadav is a named accused in F.I.R. dated 27.04.2018, whereas applicants-2, 3 and 4 i.e. Tirra @ Atik, Nanake and Dhiru are not named in F.I.R. During the course of investigation, complicity of applicants were not found to be established in the crime in question. Accordingly, applicant-1, Rohit Kumar Yadav, who is a named accused, was exculpated, whereas no charge-sheet was submitted against applicants 2, 3 and 4. In continuation of his challenge to the impugned order dated 02.02.2021, learned counsel for applicants contends that court below should have deferred the disposal of application under Section 319 Cr.P.C. filed by first informant/opposite party-2 till the statement of Investigating Officer, who had investigated above-mentioned case crime number, was not recorded. According to learned counsel for applicants, testimony of Investigating Officer would be relevant as he alone could place the facts and circumstances on the basis of which, applicant-1 was exculpated, whereas applicants 2, 3 and 4 were not charge-sheeted. It is, thus, urged that in the absence of testimony of Investigating Officer, the relevant material in concerned case crime number regarding above could not be placed before court below. As such serious prejudice has been caused to applicants, who have now been summoned, to face trial in above-mentioned criminal case simply on the basis of the testimonies of P.W.-1, Rakesh Singh, First informant/opposite party-2, P.W.-2 Dr. Saumya Anand, the Doctor, who has examined the prosecutrix. P.W.-3 Sarita @ Divya (prosecutrix). In the absence of testimony of Investigating Officer, the credibility of testimony of P.W.-1, P.W.-2 and P.W.-3 could not be examined. It is, thus, urged that court below has pre-empted the disposal of application under Section 319 Cr.P.C. filed by first informant/opposite party-2. Learned counsel for applicants also contends that no protest petition was filed by first informant/opposite party-2 to the charge sheet dated 28.05.2018. No explanation has been offered in the application under section 319 Cr.P.C. regarding aforesaid. It is, thus, contended that application under section 319 Cr.P.C. was filed on account of an ulterior motive only to harass the applicants. Moreover, no objection/grievance was raised by first informant/opposite party-2 against the Investigating Officer regarding the manner of investigation or a failure on the part of part of investigating Officer in not examining material witnesses either before the Magistrate or before any senior police officer. In the submission of learned counsel for applicants, testimonies of P.W.-1, Rakesh Singh, First informant/opposite party-2, P.W.-2 Dr. Saumya Anand, the Doctor, who had examined the prosecutrix. P.W.-3 Sarita @ Divya (prosecutrix) do not make out a cast iron case for summoning of applicants. No finding has been recorded by court below as to how the testimonies of P.W.-1, P.W.-2 and P.W.-3 satisfy the test laid down by the Constitution Bench in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92. No exercise has been undertaken by court below to weigh the material that was gathered by Investigating Officer during the course of investigation and to find out whether any new material has emerged in the testimonies of P.W.-1, P.W.-2 and P.W.-3, which obviously the court below was required to undertake as per the mandate of Apex Court in Briijendra Singh and others Vs. State of Rajasthan, (2017) 7 SCC 706. According to learned counsel for applicants, the statement of one of the charge-sheeted accused namely Surendra Yadav was recorded under Section 164 Cr.P.C. also. The said statement is admissible in evidence. As per the aforesaid statement, it can be definitely gathered that the complicity of applicants is not established in the crime in question. To the contrary, it is the complicity of the charge-sheeted accused only, which is established in the crime in question. No attempt has been made by court below to consider the aforesaid aspect of the matter. As such, order impugned is vitiated. The change in the statements of prosecutrix regarding the manner of occurrence speaks of her inconsistency, which remains unexplained. As such, when the disposition of P.W.-3, the prosecutrix is examined in the light of her previous statements, same does not fall in the category of impeccable evidence. According to learned counsel for applicants, a person can be prosecuted on the basis of sole testimony of prosecutrix. However, in that eventuality, the testimony of the prosecutrix should be of impeccable character, which admittedly is not the case here. It is, thus, sought to be urged that court below has failed to exercise it's jurisdiction "diligently". Court below has summoned applicants in a "casual and cavalier manner" even when there is no "strong and cogent evidence" against applicants. No finding has been recorded by court below that something more-than complicity of applicants is established in the crime in question. On the aforesaid premise, it is, thus, urged that impugned order passed by court below cannot be sustained and therefore same is liable to be quashed by this Court.

17. Per contra, the learned A.G.A. has opposed this application. Learned A.G.A. contends that statement-in-chief of P.W.1- Rakesh Singh is alone relevant for deciding the application under Section 319 Cr.P.C. as he is a prosecution witness of fact. However, in present case, there are testimonies of P.W.-2 Dr. Saumya Anand, the Doctor, who has examined the prosecutrix, and P.W.-3 Sarita @ Divya (prosecutrix). Aforesaid witnesses have also been cross-examined. As such, their testimonies fall within the realm of legal evidence. Consequently, no illegality has been committed by court below in placing reliance upon same for deciding application under Section 319 Cr.P.C. According to learned A.G.A., as per the Constitution Bench judgement in Hardeep Singh (Supra) even the statement-in-chief of P.W.-1 is sufficient for deciding the application under Section 319 Cr.P.C. Police report submitted by Investigating Officer is not conclusive proof of innocence of applicants. No irregularity or illegality has been committed by court below, in passing the impugned order dated 02.02.2021. Even though applicants have not been charge-sheeted by Investigating Officer, same cannot be taken as a ground to urge that applicants cannot be subsequently summoned to face trial. Applicants will have adequate opportunity to prove their innocence before court below by adducing Investigating Officer also as a defence witness. No attempt has been made to draw a parallel between the statements of P.W.-1, P.W.-2 and P.W.-3 as recorded under Section 161 Cr.P.C. and their testimonies given before court below. Moreover, no ground has been raised in the affidavit filed in support of the application under Section 482 Cr.P.C. that nothing new has been stated by P.W.-1, Rakesh Singh (First informant/opposite party-2), P.W.-2 Dr. Saumya Anand (the Doctor, who had examined the prosecutrix), P.W.-3 Sarita @ Divya (prosecutrix) in their depositions before court below than what was stated by them in their statements under Sections 161/164 Cr.P.C. As such, nothing new has come on record on the basis of which, applicants could have been summoned. Moreover, the prosecutrix has remained consistent in so far as complicity of applicant-1, Rohit Kumar Yadav is concerned in the crime in question. Her deposition before court-below as well as her previous statements are categorical and devoid of any ambiguity against applicant-1, Rohit Kumar Yadav and does go to show much more than mere complicity of applicant-1. Impugned order passed by court below is in conformity with the principles laid down by Constitution Bench in Hardeep Singh (supra), wherein court has defined the manner in which jurisdiction under Section 319 Cr.P.C. is to be exercised. Court below has recorded cogent findings in support of it's conclusion. The findings so recorded cannot be clarified as illegal, perverse or erroneous. No jurisdictional error has been committed by court below either in passing the impugned order. On the aforesaid premise, it is, thus, urged by learned A.G.A. that no indulgence be granted by this Court in favour of applicants. Present application under Section 482 Cr.P.C. is, therefore, liable to be dismissed.

18. Having heard the learned counsel for applicants, the learned A.G.A. for State and upon perusal of record, this Court finds that the issue, which arises for determination, in present application is: what are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As a corollary to above, whether the order impugned is within the established parameters or not.

19. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by Supreme Court. The chronology of same is as under:

21. Summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).

22. The nature of evidence required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph-106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of a solitary prosecution witness of fact. The only requirement is that such statement discloses 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 un-rebutted would lead to conviction. The second test laid down therein is that such person could be tried with other accused. In paragraph- 36 of the judgement in S. Mohammed Ispahani (supra), Court held that a non charge sheeted accused can be summoned only on the basis of "strong and cogent evidence".