ORDER K.N. Ojha, J.
1. Heard Sri C.K. Parekh, learned counsel for the revisionist and the learned AGA on admission of the revision. The Criminal Revision is being decided finally at the admission stage.
2. Instant revision has been preferred by Nafe alias Ashutosh son of Mahendra Singh, resident of village Rajpur Khampur, District Meerut, against order dated 23-8-2003 passed by Additional Sessions Judge (Special Judge) Baghpat, in Sessions Trial No. 54 of 2000, State v. Shailendra, pending under Section 376, 506, IPC police station Baraut, District Baghpat, by which the application 14C moved by the prosecution under Section 319, Cr. P.C. was allowed, and the revisionist has been summoned through warrant to appear in the Court and face trial in Sessions Trial No. 54 of 2000, under Sections 376, 506, IPC.
3. Prosecution case is that FIR was lodged by Smt. Rajo, resident of village Rajpur Khampur, District Meerut, which was registered under Sections 376, 506, IPC at police station Baraut, District Baghpat, on 23-3-1996 at 7.30 p.m. against Shailendra accused, who is already facing sessions trial and Nafe alias Ashutosh, The FIR was registered at the police station on the direction of the Superintendent of Police, Baghpat, on the application of the informant Smt. Rajo. She had moved application to the Superintendent of Police that she belongs to a poor family. Her daughter Kumari Sunita had gone to the door of Shailendra and Nafe alias Ashutosh both sons of Mahendra, who are residents of her village on 21-3-1998 at 6 p.m. as her fodder was to be cut into pieces at the grass cutting machine of Shailendra and Nafe. Both these persons were present there. They asked Kumari Sunita to go inside the Kothari to make the electric current on so that the machine could start. When she entered inside the room both of them committed rape on her one by one. On her alarm she, Kamal Singh, Ramphal, etc. reached there. The accused persons ran away. The age of Kumari Sunita was mentioned as 14 years in the FIR. She was medically examined. The doctor opined that no opinion could be given about the rape as no external or internal injury was found on any part of Kumari Sunita. In the opinion of the doctor her hymen was old torn and was checked with help of two fingers. After investigation charge sheet was submitted only against Shailendra. When the case was committed to the Court of Session, charge was framed only against Shailendra. Statements' of P.W. 1 Smt. Rajo, mother of the prosecutrix and informant of the case and P.W. 2 Kumari Sunita were recorded in which they supported the prosecution story. Since both these witnesses had stated that Nafe alias Ashutosh had also committed rape on Kumari Sunita, therefore, when application was moved by the prosecution to summon the revisionist Nafe alias. Ashutosh under Section 319, Cr. P.C., the application was allowed by the impugned order, hence instant revision has been preferred.
4. The learned counsel for the revisionist submits that when the statement was made by Kumari Sunita before the learned Judge, he opined that even though Sunita had stated that she does not know about her age, but her age appeared to be about 20-21 years. It was also submitted that, in medical examination report the doctor opined that she lacked chastity and there was delay in lodging the FIR. It was further submitted that Nafe alias Ashutosh was born on 20-7-1983 thus at the time of the alleged occurrence he was aged about 15 years only. In these circumstances there was no sufficient evidence to summon Nafe alias Ashutosh under Section 319, IPC. Reliance was placed on 2001 (43) All Cri C 395 : (2001 All LJ 1994), Ram Lochan v. State of U. P. in which it has been held that the power under Section 319, Cr. P.C. can be exercised only if it so appeared from the evidence recorded during inquiry or trial and not otherwise. Existence of some evidence is thus sine-qua-non of the applicability of Section 319, Cr. P.C. Reference was also made of 2000 (40) All Cri C 795 : (2000 AIR SCW 734) Michael Machado v. Central Bureau of Investigation, in which it was held by Hon'ble the Apex Court that unless the Court is hopeful that there is reasonable prospect as against the newly brought accused ending in conviction of the offence concerned, the Court should refrain from adopting such a course on action. Thus a duty is cast upon every Court before ordering summoning of an accused under Section 319, Cr. P.C.
5. In instant case the revisionist has been summoned under Section 319, Cr. P.C. on the basis of the statement of the informant Smt. Rajo, who is the mother of Kumari Sunita, who stated that when she reached after the occurrence she found that bleeding was present in the private part of Kumari Sunita and she told as to how the rape was committed by Shailendra and Nafe alias Ashutosh. The Additional Sessions Judge examined Kumari Sunita also and she supported the prosecution story and described specifically an active role of the revisionist Nafe alias Ashutosh in the commission of the crime. The role of the revisionist in commission of the crime is said to be the same, which is of Shailendra, who is already facing trial. There is no paper to show that in medical examination Kumari Sunita was found major at the time of the occurrence. The prosecution has denied that she was consenting party. It is a matter of evidence as to what was the real age of the prosecutrix at the time of commission of the occurrence and whether she was the consenting party to the alleged offence or not. At this stage only prima facie evidence, which emerges from the statement of the prosecution witness is to be considered and if there appears involvement of the revisionist in the crime, the impugned order is to be taken to have been passed in accordance with law.
6. Section 319, of Cr. P.C. contemplates that "where, in the course of any inquiry into, or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed."
7. In instant case the statement of prosecutrix and her mother is sufficient to make out prima facie case for summoning the revisionist under Section 319, Cr. P.C.
8. It would be significant to mention that the co-accused Shailendra is already facing trial and he was enlarged on bail by the learned Sessions Judge, Meerut, in Bail Application No. 2021 of 1998 on 7-8-1998. The case of the revisionist is similar. In such circumstances the attendance of the revisionist in the sessions trial should be procured by issuing summons or by directing him to appear on a particular date in the Court rather than issuing a non-bailable warrant against him. If he appears in the Court and moves bail application, his bail application should be disposed of after considering the circumstances of the case in accordance with law. The impugned order is modified to this extent only.
9. With this observation the revision is dismissed.