RAJUL BHARGAVA,J. - (1.) Heard Sri Vimlendu Tripathi and Sri Rajesh Kumar Mishra, counsel for the revisionists and learned AGA.
(2.) The present criminal revision has been filed against the impugned judgment and order dated 4.10.2019 passed by learned Additional District and Session Judge, Hapur on the application filed by opposite party no. 2 u/s 319 Cr.P.C. in Special Session Trial no. 45 of 2016 (State vs. Joni) arising out of Case Crime no. 120 of 2016, u/s 363, 366, 376 IPC, and Section -? POCSO Act, P.S. Babugarh, District Hapur.
(3.) The breif background of the case is that the revisionists were summoned u/s 319 Cr.P.C. vide order dated 13.12.2018 on the basis of statement of prosecutrix recorded during trial in which she has levelled allegation of gang rape against the revisionists and the said order was challenged by the revisionists in Criminal Revision no. 459 of 2019. The coordinate Bench of this Court quashed the order dated 13.12.2018 and remanded the matter back for fresh consideration after affording opportunity of hearing to both the parties strictly in the light of ratio laid down in Hardeep Singh's case etc. within a period of eight weeks. The order passed by the Court is as under:- "Heard learned counsel for the revisionists and learned AGA for the State. The instant Criminal Revision is on behalf of the revisionist Manoj and Raju @ Raj Kumar is targetted against the orders passed by Additional Sessions Judge, Hapur while deciding the application no. 30 kha under Section 319 Cr.P.C. so preferred by the accused informant. Submission made by the counsel is that the informant Ashok Kumar lodged an FIR on 06.04.2016 under Sections 363 and 366 IPC, P.S. Babugarh, District Hapur against one Johny. The name of the revisionist was neither named in the FIR nor his name came during investigation. Submission furhter made by the counsel is that during investigation, the statement under Section 164 Cr.P.C. of the victim was recorded in which she has taken name of Raju @ Rajkumar and Manoj for extending threats to girl but, interestingly, ignoring 164 Cr.P.C. and collecting or attending material, the I.O. of the case in the fitness of the case of the circumstances has submitted under Section 173 (2) Cr.P.C. only against Johny and there was no whisper in the charge sheet regarding the complicity of Jitendra, Raju and Manoj (revisionists). Thereafter since the case was triable by the sessions court and consequently the matter was committed to the court of Sessions. The testimony of the victim was recorded on 21.06.2018 in which she has taken the name and attributed the role against the Johny son of Babloo, Jitendra son of Karan, Jitendra's uncle Raju @ Rajkumar and uncle of Johny, Manoj and has mentioned that all the four has out raged her modesty. Not only this the mother of the victim has also recorded her testimony on the same lines and thereafter it was prayed from the court learned trial court to exercise the power under Section 319 Cr.P.C. and summoned known accused persons (revisionists) and by impugned order learned trial judge has summoned the revisionist. Learned counsel for the revisionists has assailed the order on the ground that the order impugned is in complete tangent of the ratio laid down by the Hon'ble Apex Court in the case of Brijendra Singh and others Vs. State of Rajasthan reported in (2017) 7 SCC 706, Hardeep Singh vs State Of Punjab and Ors reported in (2014)3 SCC 92, Labhuii Amratji Thakor and others Vs. State of Gujrat and another, (Criminal Appeal No. 1349 of 2018 arising out of SLP (Crl.) No. 6392 of 2018 decided on 13.11.2018. ;