Kamruddin Ansari Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2622 of 2018

------

Kamruddin Ansari, aged about 65 years, son of late kabil Ansari, resident of village- Gouripur Kapsatala, P.O.- Raghunathpur P.S – Poreya Hat Dist- Godda Jharkhand … Petitioner

¶4

Versus … The State of Jharkhand Opposite Party ------ For the Petitioner : Ms. Chandana Kumari, Advocate For the State : Ms. Nehala Sharmin, Spl.P.P. For the Informant : Mr. Ranjan Kr. Singh, Advocate ------ P R E S E N T

¶5

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶6

By the Court:- Heard the parties.

¶7

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 07.07.2018 passed in Misc. Criminal Application No.29 of 2018 arising out of S.T. Case No.164 of 2008 in connection with Poraiyahat P.S. Case No.58 of 2008 by which the learned Additional Sessions Judge-III, Godda has allowed the application under Section 319 of the Code of Criminal Procedure and issued summons to the petitioner and the said case is now pending before the learned Additional Sessions Judge-III, Godda.

¶8

The brief facts of the case is that on 30.03.2008, the petitioner alongwith the co-accused persons threatened to insert bullet in the body of the deceased Imteyaz Ansari and also threatened to abduct the Imteyaz Ansari. Imteyaz Ansari was found missing from his house on 03.04.2008 at 4.00 AM and his dead body was found at 11.00 AM on 03.04.2008 from a field of the village. On the basis of the written report submitted by the informant, an F.I.R. vide

¶9

¶10

Cr. M.P. No.2622 of 2018

¶11

Poraiyahat P.S. Case No.58 of 2008 was registered involving the offences punishable under Section 302, 201 and 34 of the Indian Penal Code against the petitioner and the co-accused persons. After investigation of the case, police submitted Final Form and did not send up the petitioner for trial. During the course of the trial of the co-accused persons against whom charge-sheet has been submitted, the witnesses have stated about the petitioner along with coaccused persons threatening the deceased on 30.03.2008 as already indicated above and only on the basis of the same, the learned Additional Sessions JudgeIII, Godda has exercised the power under Section 319 of the Code of Criminal Procedure and held that prima facie evidence is available in the record against the petitioner, hence, summoned him to face the trial vide order dated 07.07.2018 passed in S.T. Case No.164 of 2008.

¶12

Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Hardeep Singh vs. State of Punjab & Others reported in (2014) 3 SCC 92 paragraph-106 of which reads as under:-

¶13

“106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused”. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.” (Emphasis supplied)

¶14

¶15

Cr. M.P. No.2622 of 2018

¶16

and submits that it is a settled principle of law that only prima facie case is not sufficient to exercise the power under Section 319 of the Code of Criminal Procedure by a court but the test that has to be applied is one which is more than prima facie facts as exercised at the time of framing of charge but of course short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction.

¶17

Learned counsel for the petitioner next submits that since the learned Additional Sessions Judge-III, Godda has exercised the power admittedly on the basis of the prima facie facts and without this recording the satisfaction that more than prima facie case existed and the deposition of the witnesses only shows that there was a threatening given by the petitioner about four days before the alleged death of the deceased, therefore, the learned Additional Sessions Judge-III, Godda has committed a grave illegality in arraying the petitioner as an accused to the sessions trial. Hence, it is submitted that the impugned order is not sustainable in law. It is lastly submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

¶18

Learned Spl.P.P. appearing for the State and the learned counsel for the informant on the other hand vehemently oppose the prayer made by the petitioner in this Criminal Miscellaneous Petition and submit that the allegations against the petitioner is that he threatened the deceased to insert bullet on his body and the same is indicative of the fact that the petitioner was contemplating to kill the deceased and the deceased has ultimately has been killed by the petitioner. It is then submitted that it is obvious that the petitioner and the co-accused persons who have of course been acquitted after trial are squarely responsible for the murder of the deceased namely Imtiyaz Ansari. It

¶19

¶20

Cr. M.P. No.2622 of 2018

¶21

is lastly submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

¶22

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is needless to mention here that the law is well settled that the power under Section 319 of Cr.P.C. is a discretionary and extraordinary power and it is to be exercised sparingly and only in those cases where the circumstances of the case so warrant.

¶23

Now coming to the facts of the case, the petitioner though was named in the F.I.R.; after investigation, police did not send him up for trial upon finding the allegation against him to be not true, as he was employed as assistant teacher in Project High School, Ahilyapur in the district of Giridih and on the date of occurrence, he was working in the school and the headmaster of the school has issued a certificate to this effect also and consequent upon the same, the Final Form was accepted by the court concerned. The only allegation against the petitioner is that the petitioner in furtherance of the common intention with the co-accused persons threatened to insert bullet on the body of the deceased about four days prior to the death of the deceased. There is no material in the record as to how the deceased has died whether by any gunshot injury or in any other manner, the learned counsel for the opposite parties also could not say anything about the cause of death of the deceased.

¶24

Under such circumstances, this Court is of the considered view that the materials available in the record is insufficient to exercise the power under Section 319 of Cr.P.C. by the learned Additional Sessions Judge-III, Godda and the circumstances also do not warrant exercise of such power under Section 319

¶25

of Cr.P.C. Accordingly, this Court is of the considered view that the

¶26

¶27

Cr. M.P. No.2622 of 2018

¶28

continuation of the order dated 07.07.2018 passed by the learned Additional Sessions Judge-III, Godda will amount to abuse of process of law; therefore, this is a fit case where the order dated 07.07.2018 passed in Misc. Criminal Application No.29 of 2018 arising out of S.T. Case No.164 of 2008 in connection with Poraiyahat P.S. Case No.58 of 2008 which is now pending before the learned Additional Sessions Judge-III, Godda, be quashed and set aside.

¶29

Accordingly, the order dated 07.07.2018 passed in Misc. Criminal Application No.29 of 2018 arising out of S.T. Case No.164 of 2008 in connection with Poraiyahat P.S. Case No.58 of 2008 which is now pending before the learned Additional Sessions Judge-III, Godda, is quashed and set aside qua the petitioner only.

¶30