S.R.BHARGAVA, J. - (1.) HEARD Shri V.P. Srivastava for revisionist and Shri P.S. Adhikari for State.
(2.) THIS revision against summoning order under Section 319 Cr.P.C. has arisen in the following circumstances :- "It is not disputed for the purposes of this revision that a partnership firm constituted by partner revisionists Smt. Parvati Devi and Sri Niwas and one Ashok Kumar, working and carrying business in the name of M/s. Ram Niwas Ashok Kumar at Mestonganj, Rampur, is wholesale dealer of foodgrains. It is alleged by the prosecution that on 19th July, 1984 in a raid by a team of Food department headed by the then Regional Food Officer, D.S. Rana, shortage of foodgrains as compared to the stock register was detected and it was further found that in the cash memos names and full addresses of the purchasers were not mentioned at the business premises of the said firm. Santosh Kumar son of one of the partners was present at the premises, he was arrested. Ultimately after investigation charge-sheet for offences punishable under Section 3 read with Section 7 of the Essential Commodities Act due to alleged contravention of U.P. Foodgrains Dealers (Lincensing and Restriction of Hearing) Order, 1976 and U.P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution) Order, 1977 was submitted against said Santosh Kumar in the court of Special Judge (Economic Offences), Rampur. During evidence it was discovered that the revisionists and one Ashok Kumar are partners of the firm. Learned Special Judge placed reliance on the proviso of Section 10(1) of the Essential Commodities Act and held that prima facie case is made out against the revisionists and they are liable to punishment unless they prove that the contravention took place without their knowledge or they exercised due diligence to prevent such contravention. He was further of the view that the provisions of Section 10(1) and (2) make out that partners of the firm are prima facie responsible for the contravention of the Orders unless any one of them proves that it was without his authority and knowledge and he exercised due diligence to prevent the same. Learned special Judge observed that burden has been shifted on the partners of the firm to prove their innocence. Hence the learned Special Judge summoned the revisionists under Section 319 Cr.P.C." If during enquiry of trial it appears to a court from the evidence that some person or persons not being accused in the care committed offence, the court can summon such person or persons for being tried along with the accused already before the court for such offence he or they appear to have committed. A bare reading of Section 319 Cr.P.C. makes it dear that persons not being prosecuted can be summoned by inquiry or trial court only if the evidence adduced before such court makes out a prima facie case that such persons also committed offence. Hence the essential requirement for summoning under Section 319 Cr.P.C. is a prima facie case constituting an offence.
(3.) THEN the only question which requires determination in this case is whether on the basis of evidence that revisionists are partners in the firm can make out a prima facie case of contravention of aforesaid orders punishable under Section 3 read with Section 7 of the Essential Commodities Act.;