ORDER : (Manoj Kumar Garg, J.) 1. Instant criminal revision petition has been filed by the petitioner against the order dated 08.03.2022 passed by the learned Additional Sessions Judge No.1, Hanumangarh by which the trial court rejected the application filed by the petitioner under Section 319 Cr.P.C and refused to take cognizance against the respondents No.2 & 3. 2. Brief facts of the case are that on 03.04.2021, the complainant petitioner submitted a complaint before the Superintendent of Police, Hanumangarh stating therein that the respondent Satpal who is maternal father-in-law and Radheyshyam who is close relative of Satpal, used to visit him. A few days back, when the complainant was taking bath, the accused Radheyshyam took her video and started blackmailing her. It was alleged that the accused Radheyshyam used to come to her home and molest her. It was alleged that on 14.12.2020, the accused Anup and Radheshyam forcibly took her in a car to Hanumangarh where, she was intoxicated and thereafter, the accused Anup and Radheyshyam committed rape with her. It was also alleged that the accused persons snatched her mobile and took away her gold ornaments. 3. On the basis of above complaint, the police registered FIR No.82/2021 at Police Station Goluwala, District Hanumangarh. The police after investigation filed chargesheet against the accused Anup but exonerated the respondents No.2 & 3. 4. During trial, the present petitioner was examined in Court as PW/1. After examination, the complainant petitioner filed an application under Section 319 Cr.P.C. for taking cognizance against the respondents No.2 & 3. The said application was dismissed by the trial court vide order dated 08.03.2022. 5. Learned counsel for the petitioner submits that the trial court has committed grave error of law in refusing to take cognizance against the respondent No.2 & 3. It is argued that the complainant petitioner right from inception i.e. in the FIR, in the statement under Section 161 & 164 Cr.P.C, has consistently averred that respondent No.3 Radheysham and Anup both committed rape with her. The petitioner also showed the site where the offence was committed and in the site plan has also been marked X where the accused committed rape. The petitioner also showed the site where the offence was committed and in the site plan has also been marked X where the accused committed rape. It is argued that the investigating officer has exonerated the accused respondent no.3 on the ground that no mobile location of said accused was found at the site and the alleged video clip prepared by the accused respondent no.3 was not submitted by the complainant. Learned counsel for the petitioner submits that the petitioner in her court statement as PW/1 has specifically averred that the respondent no.3 Radheyshyam and accused Anup both committed rape with her and therefore, respondent no.3 involvement cannot be denied at all but the learned trial court refused to take cognizance against the respondent no.3 on the basis of mere surmises and conjectures. 6. Per contra, counsel for the respondents No.2 & 3 vehemently opposed the prayer and argued that the police after thorough investigation had filed chargesheet against the accused Anup and exonerated the respondents No.2 & 3. The investigating officer has given details reasons for exoneration as their presence could not be verified. It is argued that the complainant went with the accused Anup on her own free will with all the ornaments and she was recovered from the house of Anup. In fact, the complainant went to the police station and filed an application on 11.12.2020 stating that her husband may kill her. It is submitted that respondent No.2 Satpal is complainant’s maternal father-in-law and Radheshyam is near relative of Satpal. Even the owner of the car as well as driver of the vehicle have stated that Anup and Kiran both went in the car, therefore, the respondents No.2 and 3 had no involvement in the alleged offence, and the trial court has rightly rejected the application filed by the petitioner under Section 319 Cr.P.C. Learned counsel for the respondent placed reliance on judgment of Hon’ble Apex Court in the case of Shankar Vs. State of UP & Ors reported in 2024 Supreme (SC) 6421, Aarif & ors Vs. State of Rajasthan reported in 2023 7 Supreme 246 . 7. I have heard rival contention of the parties and carefully gone through the record. 8. Admittedly, the police after thorough investigation had submitted chargesheet only against the accused Anup. State of UP & Ors reported in 2024 Supreme (SC) 6421, Aarif & ors Vs. State of Rajasthan reported in 2023 7 Supreme 246 . 7. I have heard rival contention of the parties and carefully gone through the record. 8. Admittedly, the police after thorough investigation had submitted chargesheet only against the accused Anup. A perusal of the FIR as well as the statement of complainant recorded under Section 161 & 164 Cr.P.C would go to show that although no specific role has been assigned to respondent no.2 Satpal but a specific averment has been made against accused Anup and Radheyshyam that both these persons had committed rape with her. Even in the court statement of complainant as PW/1, the complainant has specifically mentioned that accused Radheyshyam prepared video of her while taking bath and subsequently blackmailing, committed rape with her. She had also given the video clip to the police from her mobile. PW/11 Charanjeet who is the husband of complainant petitioner in his court statement has stated that Radheyshyam and Anup both committed rape with his wife and Radheyshyam after preparing a nude video, blackmailed his wife and raped her. 9. It is a settled law that at the time of passing orders under Section 319, Cr.P.C. the trial Court is required to see the evidence recorded during the trial and material on record keeping in mind the ultimate prospects of conviction of such accused. The explicit mention of name of accused in the FIR and subsequent statements significantly influences the Court’s decision to allow the application. Therefore, the Court for the purpose of Section 319, Cr.P.C. is only required to prima facie conclude that such person could be tried together with the accused for having committed the offence. 10. The constitutional Bench of Hon’ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab reported in (2014) 1 Crl.L.R (SC) 310 while discussing the powers of the Court concurred with the view taken in the case of Dharam Pal Vs. State of Haryana reported in (2014) 3 SCC 306 concluded as under: “110. We accordingly sum up our conclusions as follows: Question Nos. 1 & III Q.1 What is the stage at which power under Section 319 Code of Criminal Procedure can be exercised? State of Haryana reported in (2014) 3 SCC 306 concluded as under: “110. We accordingly sum up our conclusions as follows: Question Nos. 1 & III Q.1 What is the stage at which power under Section 319 Code of Criminal Procedure can be exercised? AND Q. III Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Code of Criminal Procedure and the Sessions Judge need not wait till 'evidence' under Section 319 Code of Criminal Procedure becomes available for summoning an additional accused. Section 319 Code of Criminal Procedure, significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Code of Criminal Procedure; and under Section 398 Code of Criminal Procedure are species of the inquiry contemplated by Section 319 Code of Criminal Procedure Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Code of Criminal Procedure, and also to add an accused whose name has been shown in Column 2 of the chargesheet. In view of the above position the word 'evidence' in Section 319 Code of Criminal Procedure has to be broadly understood and not literally i.e. as evidence brought during a trial. Question No. II Q. II Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? Question No. II Q. II Whether the word "evidence" used in Section 319(1) Code of Criminal Procedure could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? A. Considering the fact that under Section 319 Code of Criminal Procedure a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Code of Criminal Procedure the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question No. IV Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Code of Criminal Procedure to arraign an accused? Whether the power under Section 319(1) Code of Criminal Procedure can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? A. Though under Section 319(4)(b) Code of Criminal Procedure the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Code of Criminal Procedure would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial-therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question No. V Q. V Does the power under Section 319 Code of Criminal Procedure extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? Question No. V Q. V Does the power under Section 319 Code of Criminal Procedure extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Code of Criminal Procedure has to be complied with before he can be summoned afresh.” 11. Recently, Hon’ble Apex Court in the case of Shiv Prakash Mishra Vs. State of Uttar Pradesh and Ors reported in AIR 2019 SC 3477 has held as under :- “9.The standard of proof employed for summoning a person as an Accused person Under Section 319 Code of Criminal Procedure is higher than the standard of proof employed for framing a charge against the Accused person. The power Under Section 319 Code of Criminal Procedure should be exercised sparingly. As held in Kailash v. State of Rajasthan and Anr. : (2008) 14 SCC 51 , "the power of summoning an additional Accused Under Section 319 Code of Criminal Procedure should be exercised sparingly. The key words in Section are "it appears from the evidence"."any person"."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion Under Section 319 Code of Criminal Procedure would be used by the court." 10. As held by the Constitution Bench in para (105) in Hardeep Singh, the power Under Section 319 Code of Criminal Procedure is discretionary and is to be exercised sparingly which reads as under: 105. Power Under Section 319 Code of Criminal Procedure 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. 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 Code of Criminal Procedure In Section 319 Code of Criminal Procedure 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 Code of Criminal Procedure to form any opinion as to the guilt of the Accused. 11. The above view was followed in Brijendra Singh as under: 13. In order to answer the question, some of the principles enunciated in Hardeep Singh case : (2014) 3 SCC 92 may be recapitulated: .. However, since it is a discretionary power given to the court Under Section 319 Code of Criminal Procedure and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. 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. 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. 12. In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that Respondent No. 2 cannot be summoned as an Accused. The FIR in Case Crime No. 328A/2013 was registered on 06.09.2013 at 18.15 hours. The name of second Respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the Investigating Officer recorded the statements of witnesses namely Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that Respondent No. 2 was not present at the place of occurrence at the time of the incident. The Investigating Officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which Respondent No. 2 was employed who had stated that Respondent No. 2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the Investigating Officer found that the second Respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 06.09.2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the Investigating Officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge sheet was filed on 19.09.2014. The supplementary charge sheet was filed against Rahul Shukla on 15.10.2014. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge sheet was filed on 19.09.2014. The supplementary charge sheet was filed against Rahul Shukla on 15.10.2014. Though the name of second Respondent was mentioned in the FIR, during investigation, it was thus found that the second Respondent was not present in the place of incident and on the basis of the findings of the Investigating Officer, he was not charge sheeted. Be it noted that the Appellant-complainant has not filed any protest petition then and there. During investigation, when it was found that the Accused was not present at the place of incident, the courts below were right in refusing to summon Respondent No. 2 as an Accused.” 12. After taking into consideration the entire facts and circumstances of the case, this Court is of the opinion that so far as respondent no.2 Satpal is concerned, no specific allegation has been levelled against him and therefore, the trial court has rightly refused to take cognizance against him. However, so far as the respondent no.3 Radheyshyam is concerned, his involvement cannot be discarded at this stage, in the light of specific allegation of the complainant in the FIR, in the statement recorded under Section 161 & 164 Cr.P.C. as well as her court statement. Therefore, the trial court has erred in refusing to take cognizance against the respondent Radheyshyam. So far as the judgment cited by counsel for respondent in the case of Aarif (supra) is concerned, in the said case, Hon’ble Apex Court made made certain observation regarding testimony of eye witnesses which failed to make out a prima facie case for taking cognizance. In the present case, the allegation against the respondent is that of committing rape and the complainant in her statements has consistently averred that Radheyshyam had committed rape with her. 13. So far as the case cited by counsel for the respondent in the case of Shankar (supra) is concerned, in the said case also involving offence under Section 302 IPC, the name of appellants therein were not mentioned in statement of complainant recorded under Section 161 Cr.P.C. Even the witnesses had stated that appellants had no role in commission of crime. In contrast, in the present case, name of accused Radheyshyam has been explicitly mentioend in the FIR and in statement recorded under Section 161 and 164 Cr.P.C. 14. In contrast, in the present case, name of accused Radheyshyam has been explicitly mentioend in the FIR and in statement recorded under Section 161 and 164 Cr.P.C. 14. Accordingly, this revision petition petition is partly allowed. The impugned order dated 08.03.2022 passed by the learned Additional Sessions Judge No.1, Hanumanagarh in Sessions Case No. 39/2021 to the extent of refusing to take cognizance against respondent no.3 Radheyshyam is hereby quashed and set aside and the trial court is directed to pass an order on application under Section 319 Cr.P.C and take cognizance against the accused Radheyshyam. 15. The revision petition stands disposed of. Stay application is also disposed of.