MAZHAR MAHMOOD Vs. STATE OF U P

JUDGEMENT

(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.

(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.