Jharkhand High Court
Md. Bulla Ansari @ Habibulla vs Union Of India Through Secretary on 24 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 382 of 2018
Md. Bulla Ansari @ Habibulla
@ Mohammad Bulla Ansari ..... ... Petitioner
Versus
Union of India through Secretary,
Ministry of Home Affairs & Ors. ..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. J.J. Sanga, Advocate.
For the CBI : Mr. Anil Kumar, A.S.G.I.
: Ms Chandana Kumari, A.C. to A.S.G.I.
: Mr. N.P. Sarthi, A.C. to A.S.G.I.
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08/ 24.08.2023 This petition has been filed for a direction upon the Central
Bureau of Investigation to hand over the body of the petitioner brother
Late Aleem, which is in possession of the Central Bureau of Investigation
and the said has been retained as a body of Sashi Nath Jha.
2. Mr. Sanga, learned counsel appearing for the petitioner
submits that the brother of the petitioner namely Aleem was murdered. He
submits that Sashi Nath Jha was the P.A. to Sri Shibu Soren, Member of
Parliament had left for his house in the evening on May 22, 1994 from his
office located in 17, Gurudwara Rakabganj Road, New Delhi, but did not
reach his house, subsequently Sri Amar Nath Jha, the elder brother of Shri
Shashi Nath Jha has lodged a complaint for missing of his brother, which
was registered as FIR No. 168 of 1994. He further submits that the said
case was investigated, final form was submitted, trial was concluded and
the accused persons were convicted by the learned Sessions Judge and
thereafter the High Court has acquitted them and the said order was
affirmed by the Hon'ble Supreme Court. He also submits that the body
remanates was said to be of Shashi Nath Jha kept with the CBI, however,
the family members of Shashi Nath Jha refused to accept the same, as a
body of Sashi Nath Jha and in view of the things, which were recovered
near the skeleton, it was presumed by the petitioner that it was the dead
body of the brother of the petitioner Late Aleem. He further submits that
in view of the above, several petitions have been filed and thereafter the
present petition has been filed. He also submits that CBI may kindly be
directed to hand over the said exhumed skeleton to the petitioner.
3. On the other hand, Mr. Anil Kumar, learned A. S. G. I.
appearing for the CBI submits that in the trial relating to Shashi Nath Jha,
P.W-18 and P.W-19 were only suspicious about the identity of the human
skeleton, however, as regards refusal by the family of the deceased Shashi
Nath Jha, the skull and the skeleton for performing the last rites and
rituals, in para-37 of the judgment of the High Court of Delhi a contention
was raised in Criminal Revision Petition No. 99 of 2007 stating that if the
court holds the skeleton to be of Shashi Nath Jha, the family would give it
the last rites. He further submits that P.W.-31 has stated that one
Habibullah has claimed that the skeleton, which has been recovered, is of
one Aleem, rather he has expressed probability on the fact that human
skeleton may be of his deceased brother, because he was also wearing the
same kara recovered from the grave. He further submits that the petitioner
never claimed that the skeleton to be that of his brother Aleem either
during course of trial of the case or hearing before the High Court of Delhi
or before the Hon'ble Apex Court, in view of Annexure-11 to the counter
affidavit, filed on behalf of the respondent-CBI. He further submits that
only demand made by the villagers of the human skeleton of Shashi Nath
Jha or Aleem, Exhibit-PW31/A was made and the depositions of brothers
of deceased i.e. P.W.-18 and P.W.-19, they were only suspicious about the
identity of the human skeleton. He further submits that in judgment of the
High Court of Delhi, a contention was raised in Criminal Revision Petition
No. 99 of 2007, that if the court holds the skeleton to be of Shashi Nath
Jha, the family would give it the last rites. It has been further disclosed in
the counter affidavit that if the superimposition test done by the forensic
laboratory also gave a report in negative, however, the skull matched with
that of the photograph of deceased Shashi Nath Jha. The contention of the
petitioner has been denied by the CBI to the extent that the skull and
skeleton exhumed by the CBI on 13.08.1998 was not of Shashi Nath Jha.
4. In view of the above facts, it appears that there are serious
disputed questions of fact involved in this petition that too under Article
226 of the Constitution of India. The incident of murder of Shashi
Nath Jha was of the year 1994 and exhumation was made on
13.08.1998 and almost 25 years have already been lapsed and this petition
has been filed belatedly in the year 2018. In view of the materials
disclosed in the counter affidavit of the respondent-CBI that cannot be
executed by this court considering that the trial has already been
concluded and the matter travelled up to the Hon'ble Supreme Court and
that has attained the finality. As such, no positive order can be passed by
this court. Accordingly, this petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
