JUDGMENT : 1. By this application under Article 227 of the Constitution of India, the applicant-original first informant calls in question the legality and validity of the order dated 18th September, 2017 passed by the learned Sessions Judge, Palanpur below Exh.31 in the POCSO Case No.58 of 2016. 2. The facts, giving rise to this application, may be summarized as under; 2.1 The applicant herein is the original first informant and the father of the victim. One of his daughters, namely, Ravinaben, aged 15 at the relevant point of time, went missing and, in such circumstances, the first information report had to be lodged at the concerned police station. In the course of the investigation, it was revealed that the accused, serving as a kitchen helper at the Ambaji Bhojnalay, lured the victim and eloped with her. It appears that after the accused and the victim were apprehended, the statement of the victim under section 164 of the Cr.P.C was recorded before the court concerned. In the statement of the victim, recoded under section 164 of the Cr.P.C, there is a reference of the respondent No.2. 2.2 It appears that the mother of the victim came to be examined as P.W. No.3. She deposed the following; 1. I have three children out of which the eldest is the victim whose age is fifteen years. The victim has younger brother Rano who is nine years old. Younger to Rana is Vishal whose age is four years. 2. The incident occurred before around one and half years from today. At that time I had gone to work. I had gone to Ambaji temple at the canteen for packing the Mohanthal (one sweet offered to Goddess Amba). I returned home at eleven hours in the noon. When I came home at that time the victim was not at home. Thereafter, when I inquired at the nearby places I could not find her. Thereafter at twelve—twelve thirty hours, as father of the victim used to come home and at that time I met him on the way. When I met him on the way I told to him that— the girl (daughter) is not at home and she could not be traced any where. Thereafter her father also started the search but she could not be found out. When I met him on the way I told to him that— the girl (daughter) is not at home and she could not be traced any where. Thereafter her father also started the search but she could not be found out. Thereafter in the evening her father had returned home and when I asked him, then the victim could not be traced anywhere. Thereafter on the next day, intimation was given to the police station about her missing. Thereafter someone informed to us that, one boy working in the canteen of boarding is missing, you go and make inquiry there. Thereafter when her father made inquiry there, it was informed that a boy having two names Ramkaran @ Shyam, was not found in the canteen and therefore, inquiry with his friends. In the canteen police called up his friends and made the inquiry. Thereafter ten days his address could be found. Thereafter police informed that, the address is wrong and despite searching at all the places, the victim could not be traced out. The complaint in that connection was filed by my husband. Police made inquiry with me. Thereafter four—four and half months, the victim was found. I met her in the police station. She informed to me that there was also one women who had helped in making me run away. She informed that boy named Ramkaran @ Shyam had taken her away and she (my daughter) had informed that- he (Ramkaran) had committed rape with me and also she informed that- one woman had taken me and she had handed over me to Ramkumar. I had gone to the place where that woman was working and that woman was standing inside and one male was there. I came to know that he had sent the woman for calling the girl (victim). Name of that woman is Jyotiben and she is known by her family member as Babyben. Thereafter, after carrying out the medical check up of my daughter etc., when we were given custody of our daughter, we had taken her to our home. I had seen the accused person for the first time in the police station. Name of that woman is Jyotiben and she is known by her family member as Babyben. Thereafter, after carrying out the medical check up of my daughter etc., when we were given custody of our daughter, we had taken her to our home. I had seen the accused person for the first time in the police station. He is the same person who is present today in the Hon’ble Court.” 2.3 The victim was examined as PW No.4 vide Exh.29, and in her evidence, she has deposed as under; “I do hereby state on oath that, My name is :- Ravinaben, Father’s name: Nandubhai Aud Age: Around 16 years, Occupation: Household Residing at: Ambaji, Taluka: Danta, District: Banaskantha Question:- What is your educational qualification? Answer:- I have studied upto 4th School? Question:- What is the name of School? Answer:- I have studied in Hindi School, Ambaji Question:- Do you go to the temple? Answer:- I go to the temple and worship Goddess Amba Question:- What is your date of birth? Answer:- At present I do not precisely remember the same. Question:- What will happen if one will speak lie? Answer:- It will be a sin. Question:- At what place have you come today and for what purpose have you come? Answer:- I have come to the Court. I have come to give deposition in my case. On questions being asked to the witness, she seems to be competent to give the answer and knows the seriousness. Therefore, oath is given. Examination in chief:- By Learned PP Shri N.M. Joshi 1. Name of my mother is Sonuben. Earlier my mother used to go for doing the work. At present she is at the home. My father is welding labour work. We are three brothers-sister in which I am the eldest, younger to me Ranabhai and younger to him is Vishalbhai. I have studied upto Standard-4. 2. My incident occurred before around one-one and half years. at that time I was at my home. At that time Jyotiben came to my home and had taken me to Ahmedabad Ni Dharamshala (Inn) situated in Ambaji. That Jyotiben is residing in my neighbourhood. and she is my neighbour. She had gone inside and I was made to stand outside. After coming out from inside, she made me to eat one laddu (sweet). At that time Jyotiben came to my home and had taken me to Ahmedabad Ni Dharamshala (Inn) situated in Ambaji. That Jyotiben is residing in my neighbourhood. and she is my neighbour. She had gone inside and I was made to stand outside. After coming out from inside, she made me to eat one laddu (sweet). On eating the laddu my voice got damaged means I was not able to speak. I was able to see. Thereafter Jyotiben catching hold my hand had taken me to Kumbhariya Road and at that place one white colour vehicle was parked. Going there the door of the vehicle was made to open and I was caught hold from the waist and thrown in the vehicle by Jyotiben/ thereafter Ramkumar was sitting in the vehicle and he clenched me in the vehicle by catching hold my hand. Thereafter I was taken towards Khedbrahma road. I do not remember the name of the place where we had gone near to Khedbramha. There was one room where I was taken. There rape was committed on me and when I woke up in the morning I found that not a single cloth was on my body. Thereafter I started crying and the accused person Ramkumar had come and showing me knife he was threatening me and said if I will speak anything, then I will be killed by blow with knife. I was kept in this room for two-three days and thereafter I was taken to some other village where there was kuchha (made of clay) house and upto four—five kilometers, any house or person could not be seen. In this clay house the mother, father, sister and brother of the accused were there. There the mother, father, brother and sister of the accused person all were threatening me and they were saying that we have purchased you. The accused by giving me narcotic substance was committing rape with me. At this place I was kept for four months. The accused was telling to me that you demand money from your father, otherwise I will sell you out. Therefore I made phone call to my father that- this Ramkumar demands for money. Therefore my father said that- you bring her and we will give you the money. Thereafter I was brought to Ambaji depot and from there I was taken in some Inn in Ambaji. Therefore I made phone call to my father that- this Ramkumar demands for money. Therefore my father said that- you bring her and we will give you the money. Thereafter I was brought to Ambaji depot and from there I was taken in some Inn in Ambaji. There Ramkumar again contacted on phone my father that-you come with money. Thereafter along with four-five persons of our community my father had come and we both were taken to Ambaji PS by the persons from our community. I had stated all these facts to the police but police did not take any action and also name of Jyotiben was stated but police did not take any action. I had come out of the police station for drinking the tea. At that time Jyotiben had come and had threatened me that if my name will be given in the police station, then I will kill you and your brothers will be abducted. Police had brought me before the Hon'ble Judge in the Court for recording my statement and I have also give my statement there. However, as Jyotiben and the accused had given threats, I had stated as stated by them. Today, I am shown Statement under S-164 of the Cr. P.C. wherein my signature is there. I identify the same and the same is produce, admitted and given Exh.30. Police had taken me to the doctor. I had produced my clothes before the police. I do not remember if I have shown some other place. If the clothes produced by me are shown to me then I can identify the accused person. As today police protection (custody) is not available, the accused is not present. 3. From the seized articles one black colour Pajama, underwear, yellow colour top are shown to me and they are the same which were produced by me before the police. At this stage, as application for addition of the accused is received from the prosecution the matter is adjourned. 3. From the seized articles one black colour Pajama, underwear, yellow colour top are shown to me and they are the same which were produced by me before the police. At this stage, as application for addition of the accused is received from the prosecution the matter is adjourned. Date:- 29/08/20-17 Before me Sd/- (M.R. Shah) Special Judge (POCSO) Palanpur This deposit has been recorded in my presence and under my personal supervision as stated by the witness and when the same has been read over to the witness, it is stated to be true and correct.” 2.4 As the victim named the respondent No.2 in her deposition and also attributed a specific overact, an application was filed by the applicant herein through the public prosecutor under section 319 of the Cr.P.C. to arraign the respondent No.2 as an accused in the trial. The Trial Court rejected the application holding that the respondent No.2 had no role to play so far as the offence alleged is concerned. Being dissatisfied with the rejection of the application, the applicant has come up with this application under Article 227 of the Constitution of India. 3. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the court below committed any error in passing the impugned order. 4. The law as regards the powers of the court to proceed under section 319 Cr.P.C., even against those persons who are not arraigned as accused, has been explained by the Supreme Court in a very recent pronouncement in the case of Brijendra Singh & Ors. vs. State of Rajasthan, (2017) 7 SCC 706 . The relevant observations are extracted hereunder; “9. The Powers of the Court to proceed under Section 319 Cr.P.C. even against those persons who are not arraigned as accused, cannot be disputed. This provision is meant to achieve the objective that real culprit should not get away unpunished. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab & Ors., (2014) 3 SCC 92 , explained the aforesaid purpose behind this provision in the following manner: “8. This provision is meant to achieve the objective that real culprit should not get away unpunished. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab & Ors., (2014) 3 SCC 92 , explained the aforesaid purpose behind this provision in the following manner: “8. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. xx xx xx 12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC. 13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC? xx xx xx 19. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC? xx xx xx 19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.” 10. It also goes without saying that Section 319 Cr.P.C., which is an enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgment, except during the stage of Section 207/208 Cr.P.C., the committal etc., which is only a pre-trial stage intended to put the process into motion. 11. In Hardeep Singh’s case, the Constitution Bench has also settled the controversy on the issue as to whether the word ‘evidence’ used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and indicates the evidence collected during investigation or the word ‘evidence’ is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word ‘evidence’ has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. The word ‘evidence’ has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that ‘evidence’ under Section 319 Cr.P.C. could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other persons not facing trial in the offence. 12. The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh’s case and answered in the following manner: “95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan [ (2014) 3 SCC 321 ], held that on the objective satisfaction of the court a person may be “arrested” or “summoned”, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. xx xx xx 105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. xx xx xx 105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is 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 unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused”. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused. (emphasis supplied)” 13. In order to answer the question, some of the principles enunciated in Hardeep Singh’s case may be recapitulated: Power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ‘evidence’ against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The ‘evidence’ herein means the material that is brought before the Court during trial. The ‘evidence’ herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. 14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct. 15. This record was before the trial court. 15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the ‘evidence’ recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether ‘much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny.” 5. Thus, the power under section 319 Cr.P.C. can be exercised by the Trial Court at any stage during the trial, i.e., before the conclusion of the trial, to summon any person as an accused and face the trial in the ongoing case, if the trial court finds that there is some ‘evidence’ against such a person and on the basis of such evidence it can be gathered that he or she appears to be guilty of the offence. The evidence that may surface in the examination-in-chief, without the cross-examination of the witnesses, can also be taken into consideration. However, being a discretionary power given to the court under section 319 Cr.P.C and also being an extraordinary one, the same should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The evidence that may surface in the examination-in-chief, without the cross-examination of the witnesses, can also be taken into consideration. However, being a discretionary power given to the court under section 319 Cr.P.C and also being an extraordinary one, the same should be exercised sparingly and only in those cases where the circumstances of the case so warrant. As explained by the Supreme Court in the case of Brijendra Singh (supra) the degree of satisfaction should be more than the degree which is warranted at the time of framing of the charges against others in respect of whom the charge-sheet was filed. If strong and cogent evidence surfaces against a person from the evidence led before the Court, then such power should be exercised. 6. In the case on hand, it appears, prima facie, that the respondent No.2 had some role to play in facilitating the main accused to elope with the victim. This fact is evident from the statement of the victim recorded under section 164 of the Cr.P.C and, thereafter, fully in the deposition of the victim before the trial court. Even the mother of the victim, in her deposition, has referred to the respondent No.2. It is not clear as to why the police, at the relevant point of time, did not deem fit to investigate into the role of the respondent No.2, but the fact remains that in the deposition of the victim, very serious allegations have been levelled against the respondent No.2. Whether they are true or false is for the Trial Court to consider on the overall appreciation of the evidence. In my view, a strong prima facie case has been made out for arraigning the respondent No.2 as a co-accused in the trial. 7. I am not impressed with the submission canvassed on behalf of the respondent No.2 that as the witnesses failed or omitted, for any reason, to name the respondent No.2 as an accused in their statements recorded by the Investigating Officer under section 161 of the Code, the oral evidence before the Trial Court, involving the respondent No.2, for the first time, should be discarded. 8. 8. The answer to the aforesaid argument of the learned counsel appearing for the respondent No.2 could be found in the observations made by the Supreme Court in para-8 in the case of Y. Saraba Reddy vs. Puthur Rami Reddy & Ors., 2007 AIR SCW 6258. “8. We find that the High Court has failed to notice the fact that there was in fact no delay in making the application. Though the charge sheet was filed on 7.11.1997, charges were framed on 25.8.2003. The order sheet shows that the delay cannot in any way be attributed to the complainant. There is a basic fallacy in the approach of the High Court. It called for the file to be satisfied as to whether the enquiry conducted was to be preferred to the evidence of PW-1. If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrated. Though it cannot always be the satisfaction of the Investigating Officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the Code it was required to be analysed. The conclusion that the IO's satisfaction should be given primacy is unsustainable. The High Court was not justified in holding that there was belated approach.” 9. In view of the above, this application succeeds and is hereby allowed. The impugned order dated 18th September, 2017 passed by the learned Sessions Judge, Palanpur below Exh.31 in the POCSO Case No.58 of 2016, is hereby quashed. The application Exh.31 filed by the applicant before the court below is allowed. The Trial Court shall proceed further in accordance with law. 10. It is clarified that any observations touching the merits of the case are purely for the purpose of deciding the question of arraigning the respondent No.2 as a co-accused in the trial having regard to the evidence which has come on record and shall not be construed as an expression of the final opinion in the main matter. The guilt or the innocence of the accused shall be decided by the Trial Court strictly on the basis of the overall appreciation of the evidence.