B.N.Katju - (1.) THIS is an application under Section 482 CrPC praying that the order of the Munsif Magistrate, Fatehpur dated 8-10-1980 summoning the applicant under Section 39/40/44 of Indian Electricity Act and 379 IPC be quashed.
(2.) IT appears that a report under Sections 39/40/44 Indian Electricity Act and 379 IPC was lodged at Police Station Bindki, district Fatehpur on 29-2-1978 against the applicant and Sudhu. The police after investigating the case filed a charge- sheet against Sudhu under Section 379 IPC on 30-9-1978 in the Court of the Munsif-Magistrate Fatehpur. 1 In the order of the learned Magistrate dated 8-10-1980 it is mentioned that he has perused the record of the case. The first information report was also lodged against Dwarika Prasad applicant, but the Investigating Officer has written that the case against Dwarika Prasad applicant is still under investigation. No charge-sheet has been submitted against Dwarika Prasad applicant so far. In these circumstances it was necessary to summon the applicant. The learned Munsif- Magistrate directed the applicant to be summoned under Section 39/40/44 of Indian Electricity Act and Section 379 IPC. Section 319 (1) and (2) CrPC runs as follows : "(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.) IT is clear from a plain reading of Section 319 (1) and (2) CrPC that a person could be summoned for being tried together with the accused only if it appeared from the evidence in any inquiry or trial that he has committed an offence for which he could be tried along with the accused. In the present case no evidence appears to have been recorded by the learned Magistrate in the inquiry against Sudhu accused on the basis of the charge-sheet submitted against him. The applicant could not, therefore, be summoned under Sections 39/40/44 Indian Electricity Act and Section 379 IPC to stand his trial along with Sudhu accused. The order of the learned Magistrate dated 8-10-80 was, therefore, clearly illegal. This application is accordingly allowed and the order of the Munsif Magistrate, Fatehpur dated 8-10-80 summoinng the applicant under Sections 39/40/44 Indian Electricity Act and Section 379 IPC is quashed. Application allowed.;