B.L. Loomba, J.@mdashI 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 Cold Storage and Ice Factory was under construction in January 1983, on 31st January 1983, a wall of the building collapsed as a result of which three labourers died on the spot and other 9 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 Husain Siddiqui was the owner of this Cold Storage while Niaz Ahmad Siddiqui was panner and Thekedar. Nazar was raising constructions under the supervision of the owner. From the first information 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 "yeh naunirmit cold storage ke malik Mazhar Husain Siddiqui mohalla Jhamai (Chaupatia) Lucknow ke hain tatha partner Nyaz Ahmad Siddiqui Mohalla Jhamai Chaupatia ke hain, jiski dekh rekk me...."
After investigation 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.
3. The learned Special Judicial Magistrate passed order dated 2-5-1985 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 u/s 482 Code of Criminal Procedure was filed on 15-2-83. An interim order was passed by this Court directing that in the meantime the Petitioner shall not be arrested on the basis of the first information report.
4. 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 control and supervision of the construction.
5. From the perusal of the impugned order only thing appearing is that the learned Magistrate passed the order metely on the basis of the first information report and without any reference to any other material as may have come to be placed before him to provide prima facie satisfaction of the Petitioner''s involvement in this case. It is contended that the power to proceed against the Petitioner could be exercised u/s 319 of the Code of Criminal Procedure only if during the course of 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 (sic) which was a case where no evidence was recorded and it was held that in the absence of any evidence the order was illegal.
6. 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 be according to law and merits to be quashed. This petition u/s 482 Code of Criminal Procedure is accordingly allowed and the impugned order dated 2-5-1985 is quashed. It is, however, made clear that it will be open to the learned Magistrate to pass a fresh order u/s 319 Code of Criminal Procedure according to law on the basis of evidence as may be available, if any.
