ORDER : Mr. Banwari Lal Sharma, J. 1. Petitioners-accused Sita Ram and Mahesh have assailed the impugned order dated 02.03.2005 in this revision petition which was passed by learned Special Judge, Women Attrocities and Dowry Cases, Jaipur City, Jaipur in Sessions Case No. 86/2004 u/s 363, 366 and 376 IPC by which learned Court below allowed the application of learned Special Public Prosecutor u/s 319 Cr.P.C. and issued process against the present petitioners as additional accused persons. 2. The brief facts of the case are that on 11.05.2004 complainant Jairam s/o Prabhu Dayal Yadav submitted a written report at Police Station Virat Nagar, Jaipur to the effect that :- lsok esa] Jheku~ ,l0,p0vks0 lkgc iqfyl Fkkuk fojkVuxj] ftyk t;iqj xzkeh.k fo"k;%& esjh csVh lqeu dks cgyk&Qqlyk dj Hkxk ys tkus ds lEcU/k esaA egksn;] mi;qZDr fo"k;kUrxZr fuosnu gS fd fnukad 03-05-2004 dh jkr dks esjs iM+kSl esa ck.k&xaxk esys dk jkf= tkxj.k FkkA eSa esys ds fy, ikuh Hkjus o lRlax ns[kus pyk x;kA ?kj ij esjh cM+h yM+dh lqeu yM+dk dkyw o NksVh yM+dh larks"k ?kj ds ckgj Nr ij esa lks jgs FksA eSa lRlax ns[kdj lqcg 3 cts ?kj vk;k rks esjh yM+dh lqeu ?kj ij ugha feyh rFkk esjk yM+dk o NksVh yM+dh lks;s gqbZ feyhA eSaus ,d nks txg ryk'k fd;k rks lqeu ugha feyhA rc eSaus lkspk fd iM+kSl dh yM+fd;ksa ds lkFk lqeu Hkh lRlax ns[kus xbZ gksxhA eSa Hkh vius i'kqvksa ds pkjk&ikuh o nq/k /kkj esa yx x;kA lqcg 7&8 cts rd lqeu ds ugha vkus ij eSa b/kj&m/kj iM+kSl dh <+k.kh okyksa ls iwNrkN dh o ryk'k dhA fQj eSa iM+ksfl;ksa dks crk;k vkSj esjh cPph lqeu dks <+wa<+us fj'rsnkfj;ksa esa pyk x;k] ugha feyus ij fnukad 07-05-2004 dks Fkkus ij yM+dh lqeu dh xqe gkssus dh fjiksVZ ntZ djk;h Fkh eSa mlds ckn esjh yM+dh lqeu dks ryk'k fd;k o vklikl ls tkudkjh dh rks irk pyk fd esjh yM+dh lqeu dks Jh lhrkjke ;kno iq= Jh guqeku lgk; ;kno fuoklh Nsork o egs'k ;kno iq= jken;ky fuoklh ck.kxaxk nksuksa us feydj cgyk&Qqlyk dj ?kj ys x;sA esjh yM+dh lqeu lQsn NhaV dh lyokj lwV] iSjksa esa gokbZ pIiy o gjs jax dh pqUuh igus gqbZ FkhA vk;q djhc 15&16 lky gSA vr% bu yksxksa dks idM+dj esjh yM+dh lqeu dks cjken djus dh d`ik djsaA 3. On the said report, FIR No. 55/2004 was registered at Police Station Virat Nagar, Jaipur for offence punishable under Section 363 IPC and investigation commenced, after investigation Police submitted charge-sheet against Jairam Keer and Laxman Keer u/s 363, 366 and 376 IPC. Since the alleged offences u/s 366 and 376 are triable by Sessions Court, therefore, learned Magistrate committed the case to learned Sessions Court i.e Special Judge Women Attrocities and Dowry Cases, Jaipur who after hearing on charge, framed charges under Sections 363, 366 and 376 IPC against the aforesaid accused Jairam Keer and Laxman Keer and commenced trial. After recording prosecution evidence of PW- 1 Jairam, PW-2 Suman-prosecutrix, PW- 3- Bheemraj and PW- 4 Umrao, learned special Public Prosecutor moved an application u/s 319 Cr.P.C. before the learned Trial Court for summoning petitioners as additional accused, which was allowed vide impugned order dated 02.03.2005 and petitioners were summoned as additional accused for the aforesaid offences. 4. Aggrieved by the aforesaid order, petitioners preferred this revision petition before this Court. 5. Learned counsel for the petitioners Mr. Mahesh Gupta submits that FIR was lodged on conjunctures, the complainant is not eye witness, thereafter, after recovery prosecutrix didn't allege that petitioners committed rape with her. Her statements u/s 161 Cr.P.C. were recorded twice, in subsequent Police statement, prosecutrix stated that she named petitioners due to threatening of accused-Laxman while petitioners didn't commit rape with her. Thereafter, her statement was recorded u/s 164 Cr.P.C., wherein she didn’t level any allegations against the present petitioners. He submits that during trial, prosecutrix again levelled allegations against the present petitioners and co-accused Laxman. She, in her earlier statement levelled allegations against Jairam Keer also regarding committing rape but during trial she left her. 6. He further submits that when the prosecutrix clearly stated that she implicated petitioners due to threatening of main accused Laxman and didn’t level any allegation against the present petitioners. In her statement recorded u/s 164 Cr.P.C., no allegation is there, in her statement recorded u/s 161 Cr.P.C., without considering this fact learned Trial Court wrongly allowed the application of learned Special Public Prosecutor and summoned petitioners, therefore, if impugned order sustains then it will amount to failure of justice, therefore, this revision petition may be allowed and the impugned order may be quashed and set aside. 7. Per contra learned PP Mr. 7. Per contra learned PP Mr. Jitendra Shrimali supported the impugned order and submitted that during trial prosecutrix levelled specific allegations against the present petitioners, therefore, this revision petition may be dismissed. 8. I have considered the submissions made at Bar and went through the available record. 9. Section 319 of Cr.P.C. reads as under :- “Power to proceed against other persons appearing to be guilty of offence.-- (1) 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. (2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under Sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and witness reheard; (b) subject to the provisions of clause (A), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 10. From the bare perusal of aforesaid provision, it is clear that before summoning additional accused Court has to satisfy that “any person not being the accused has committed any offence for which such person could be tried together with the accused,” as such the Court should have prima facie satisfied that such person has committed any offence, for which he can be tried with other accused. In other words, it can be said that for applying Section 319 Cr.P.C., it is essential that the need to proceed against the person other than the accused persons, appearing to be guilty of offence, arises only on evidence recorded, 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. 11. In the case in hand, since in first statement recorded u/s 161 Cr.P.C., prosecutrix didn’t level allegation regarding rape against the present petitioners, in subsequent statement recorded u/s 161 Cr.P.C., she clearly stated that petitioners were named on instructions of accused-Laxman falsely, thereafter, her statements were recorded u/s 164 Cr.P.C. wherein she didn't whisper against the present petitioners, thereafter, during trial she turned hostile. She left one accused against whom she constantly levelled allegation who is Jairam and again implicated petitioners. In such circumstances, it cannot be said that prima facie it appears that petitioners may be guilty of offence, without considering it, learned Trial Court passed the impugned order and arrayed petitioners as additional accused persons after exercising powers vested u/s 319 Cr.P.C., which is not sustainable and this revision petition deserves to be allowed, which is hereby allowed and the impugned order dated 02.03.2005 is quashed and set aside and application of Special PP u/s 319 Cr.P.c. is dismissed.