Pappu @ Salem Javed vs State of U.P.

U.S. Tripathi, J.—Heard the learned Counsel for the applicant and the learned A.G.A. and perused the order.

This revision has been directed against the order dated 662001 passed by Special Judge, (E.C. Act)/Additional Sessions Judge, Mainpuri, in Special Trial No. 3 of 1998 summoning the applicant as an accused for trial along with coaccused under Section 319 Cr. P.C.

It appears that on 561997 SubInspector Ram Bahadur Singh, the then Station Officer of P.S. Barnahal, district Mainpuri, got information that kerosene oil was being taken unauthorisedly for selling in black market. Believing on above information, he laid ambush at Dehuli crossing along with other police officers. Metador No. UP 80/E9555 was seen coming from the side of Karhal. The above Metador was intercepted and on checking two drums of kerosene oil were found on it. The Driver of the Metador namely Tilak Singh coaccused, was apprehended on the spot. Another person, whose name was disclosed, as Pappu was also sitting on the Metador, but he ran away. After investigation, chargesheet was submitted against Tilak Singh alone. During trial Constable Ramji Lal (P.W. 1) was examined by the prosecution. He stated in his evidence that Tilak Singh was driving Metador and another person named Pappu was also sitting on Metador. In his crossexamination he stated that Pappu might be owner of kerosene oil. On the basis of above evidence the prosecution moved an application for summoning the applicant under Section 319 Cr. P.C. on the ground that he was also involved in the offence.

The learned Special Judge on considering the evidence of Ramji Lal (P.W. 1) held that prima facie a case was also made out against Pappu applicant. Accordingly, he summoned him under Section 319 Cr. P.C. for trial along with other accused by the impugned order.

It was contended by the learned Counsel for the applicant that for summoning any person as an accused under Section 319 Cr. P.C. there must be some evidence, by which it should appear that the accused has committed any offence for which he could be tried together with the other accused. But in this case there is no such evidence implicate the applicant, as the only evidence against the applicant was that he was sitting on Metador and ran away. By sitting on the Metador, the applicant cannot be said to have committed any offence. That unless it is shown that he had some concerned with the recovered kerosene oil, he cannot be said to have committed an offence under Sections 3/7 of Essential Commodities Act.

Having considered the statement of Ram Ji Lal (P.W. 1) I agree with the learned Counsel for the applicant that at this stage there was no evidence against the applicant to show that a prima facie case was made out against him. The only evidence against him was that he was sitting on Metador and ran away. On crossexamination the applicant did not state that he was owner of recovered kerosene oil and he simply stated that applicant might be owner of the kerosene oil. As such on such evidence the applicant could not be summoned under Section 319 Cr. P.C.

It appears that the learned Special Judge had not scrutinised the evidence and wrongly summoned the applicant. Therefore, at this stage summoning order is liable to be quashed and it is directed that if some more evidence is adduced, which may implicate the applicant for the offence punishable under Section 3/7 of Essential Commodities Act, the Special Judge is at liberty to exercise his power under Section 319 Cr. P.C.

The revision is, accordingly, allowed. The summoning order dated 662001 is quashed at this stage. But it is made clear that it is still open to the Special Judge to exercise his power under Section 319 Cr. P.C. in case other evidence comes against the applicant.

Revision allowed.