- (1.) B. L. Loomba, J. I have heard learned counsel for the petitioner and the learned Deputy Government Advocate.
(2.) IT appears that when the building of cold storage named Rasauli Coll Storage and Ice Factory was under construction in January 1983, on 3lst January, 1983, a wall of the building collapsed as a result of which three labourers died on the spot and other nine received injuries. A first information report was lodged on the same day by Sub-Inspector Rajendra Singh of Police Station, Safdarganj, Barabanki, against Niaz Ahmad, Nazar Thekedar, Sabboo Munshi and the present petitioner Mazhar Husain Siddiqui. According to this first information report Mazhar Husaiu Siddiqui was the owner of this Cold Storage while Niaz Ahmad Siddiqui was partner and Thekedar Nazar was raising constructions under the supervision of the owner. From the first infor mation report it is not clear whether the supervision was attributed to Niaz Ahmad or Mazhar Husain in or to both of them. The words used are: After investigation a charge-sheet was submitted by the police against Niaz Ahmad, Mohd. Suleman alias Nazar Thekedar only and not against the other two persons named in the first information report, i. e. , present petitioner Mazhar Husain and Sabboo Munshi. As I am informed trial is going on against the charge sheeted accused i. e. , Niaz Ahmad and Nazar Thekedar. The learned Special Judicial Magistrate passed order, dated May 2, 1985 summoning the present petitioner mentioning that it was clear from the first information report that Mazhar Husain Siddiqui was the owner of the cold storage and the constructions were being raised by the contractor under the supervision of Mazhar Husain and as such it was necessary to summon Mazhar Husain. Being aggrieved by this order, this petition under Section 482, Cr. P. C. was filed on February 15, 1983. An interim order was passed by this Court directing that in the meantime the petitioner sha'l not be arrested en the basis of the first information report. The case of the petitioner is that in fact he is not the owner of the Cold Storage and he is not even one of the directors of the company which owns this cold storage and further that the constructions were not being made under his control and supervision and as such he is in no way accountable for the unfortunate incident and cannot as such be proceeded against. It is submitted that the learned Judicial Magistrate has passed the impugned order without there being any material before him which could provide justification for the petitioner's involvement in this offence. According to the learned counsel for the petitioner, the petitioner is working outside the country and had incidentally come to Lucknow during that period but he was not at all present at the premises of the cold storage and was in no way in the central and supervision of the construction.
(3.) FROM the perusal of the impugned order only thing appearing is that the learned - Magistrate passed the order merely on the basis of the first infor mation report and without any reference to any other material as may have ccme to be placed before him to provide prima facie satisfaction of the peti- tiorer's involvement in this case. It is contended that the power to proceed against the petitioner could be exercised under Section 319 of the Cr. P. C. cnly if during the course cf trial it appeared to the learned Magistrate on the basis of evidence that the petitioner had also committed this offence and was liable to be tried therefor. Reliance in support of the submission has been placed on the decision of this Court in Doodhnath Lal v. State of U. P. , 1981 ALJ 522, which was a case where no evidence was recorded and it was held that in the avsence of any evidence the order was illegal. Since the impugned order was passed against the petitioner merely on the basis of the contents of the first information report which have been referred to above and no mention has been made to any evidence which may prima facie implicate the petitioner, the impugned order cannot be said to bo according to law and merits to be quashed. This petition under Section 482, Cr. P. C. is accordingly allowed and the impugned order, dated May 2, 1985 is quashed. It is, however, made clear that it will be open to the learned Magistrate to passes fresh order under Section 319, Cr. P. C. according to law on the basis of evidence as may be available, if any. Petition allowed. .;