FAKIR CHAND DHANUKA Vs. THE STATE

JUDGEMENT

(1.) This application is directed against order dated 17th Dec., 1985 and 20th Dec., 1985 passed by the learned Judicial Magistrate, 4th Court, Bankura directing issue of summons upon M/s. Laduram Fakir Chand under Sec. 319 of the Cr. P.C. In C.S.G.R. No. 208 of 1979.

(2.) By the impugned order the learned Magistrate disposed of an application purported to be filed under Sec. 319 of the Cr. P.C. This application was filed on behalf of the State. It was alleged that the firm M/s Laduram Fakir Chand appears to be involved In the alleged offence being tried by the learned Magistrate So, he should be summoned under Sec. 319 of the Crimial P.C. The learned Magistrate accepted the submission made by the learned APP and allowed the application The petitioner was an accused before the learned Magistrate. Being aggrieved he has filed this application.

(3.) Mr. Ghosh appearing for the petitioner has submitted that Sec. 319 does not apply in the facts and circumstances of this case According to him all along the prosecution was aware that M/s Laduram Fakir Chand a firm was searched by the Police. It was also alleged that the firm failed to comply with the provisions of the order passed under the Essential Commodities Act. Therefore, they were aware in respect of the allegations now being made against the firm Sec. 319 provides that where in the course of any enquiry 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. The condition for application of Sec. 319 is that it will appear from the evidence that a person who is not an accused is to be tried together with the accused persons, then and then only Magistrate can proceed against such person for the offence which he appears to have committed In the instant case it appears in the petition of complaint and in the charge-sheet it has been repeatedly stated that the premises of the firm was inspected by the officers of the department and that they have found non compliance of the order in the premises of the said firm. Even then, no charge was framed against the firm That was a lapse on the part of the prosecution Sec. 319 cannot be used for correcting the lapses made by the prosecution In the instant case precisely that is being done. It appears that the complaint was lodged in the year 1977. Trial is still continuing if the firm is made an accused, trial has to be started de novo. This will take a pretty long time again For the mistake committed by the prosecution the petitioner cannot be asked to suffer the difficulties of a prolonged trial. On the facts and circumstances I do not find any justification on the part of the learned Magistrate to allow an application filed by the prosecution under Sec. 319 Cr P.C. Under these circumstances the impugned order is set aside. The learned Magistrate is directed to dispose of the case as early as possible This application is accordingly disposed of. Application allowed; direction given.