Jharkhand High Court
Md. Qurban Ansari @ Md. Qurban vs The State Of Jharkhand .... .... ... on 18 January, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No.716 of 2023
Md. Qurban Ansari @ Md. Qurban ..... ... Petitioner
Versus
The State of Jharkhand .... .... Opposite Party
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioner : Ms. Rashmi Kumar, Advocate
For the State : Ms. Nehala Sharmin, Spl. PP
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07/18.01.2024 Learned counsel for the petitioner and learned APP for the State
are present.
2. The instant criminal revision has been directed on behalf of the
petitioner against the order dated 26.04.2023 passed by learned Additional
Sessions Judge-II-cum Spl. Judge (Drug & Cosmetic Act), Koderma in
Miscellaneous Criminal Application No.357 of 2022, arising out of C. (Durg
and Cosmetics) Case No. 01/21, (G.R. Case No.168/2021), registered under
sections 275/276/336/120(B) of the Indian Penal Code, section 40 & 41 of
Clinical Establishment (Registration & Regulation) Act, 2010 and section
27/27(A) of Drugs & Cosmetics Act, whereby the discharge application of
the petitioner filed u/s 227 of Cr.PC has been rejected.
3. The brief facts leading to this criminal revision are that the Chief
Medical Officer, Koderma had given the written information with the police
station Jaynagar (Telaiya Dam) of Koderma with these allegations that he had
received the information on 10.07.2020 at 3:20 from Dhiraj Kumar, Mukhiya
of Pipradih village that in a house situated in Pipradih village, the illegal
detection of the sex of fetus was being conducted. Having received this
information a raiding team reached at the indicated place which was
constituted by the informant and found that in a room of the house of Asgar
Ansari there was a chamber of a doctor in which the chair, table was also
there. Letter pad of Dr. Binod Kumar Paswan, stethoscope in one bag and
several medicines were also found. On the table the medicine and the syringe
were also found. It appeared that Dr. Binod Kumar Paswan and Qurban
Ansari who were treating after having gone to village to village. In the
another room of the same house after lifting up the shutter of the same it was
found that there were also medicines, counter, rack alongwith chair, rack was
also filled with the medicines. Asgar Ansari failed to show the papers of the
medicines which were found from there. At the ground-flour of the house in a
room there was also a seat for diagnosing the patient and outside the house a
sign board was also found which was also rubbed with the paint. It was told
by the villagers that on the sign board Qurban clinic was written. From the
clinic the medicine, xylocaine vial, condid Dusting powder, Pantogem-DSR
syrup, epidosine injection, Mam injection, evatocin injection, phenargen
injection and methargine injection were also seized. In presence of the
independent witnesses the same were sealed in the very room and one key
was handed over to the station officer in-charge of the police station
concerned and other key was kept by the informant. It also appeared that the
illegal abortion was being conducted therein. It was also told that one
motorcycle bearing registration no. JH-09Q-5598 was also left at the spot by
one man and woman who had come to the clinic for detection of the sex of
the fetus at the time of conducting raid. In this house Qurban Ansari was
being carrying on termination of the pregnancy in illegal manner without any
qualified medical certificate.
3.1 It was further stated that one Binod Kumar Paswan who was
also conducting clinic in the very house without the valid medical degree or
valid medical papers such clinics are also prohibited to be run without being
registered in view of the Clinical Establishment Act. The illegal act of
abortion which was being conducted therein shows negligence endangering
to health of the patient.
3.2. On the basis of this written information a case crime no.144 of
2020 was registered under section 275, 276, 336, 120B of IPC, section 40
and 41 of the Clinical Establishment (Registration and Regulation) Act 2010
and section 27 and 27(A) of the Drugs and Cosmetic Act 1940 was registered
against the accused Qurban Ansari and Binod Kumar Paswan.
4. The IO conducted the investigation and in para-2 of the case
diary recorded the restatement of the informant in which the allegations
which were made in the FIR itself are reiterated. In para-7 of the case diary
statement of witness Dhiraj Kumar was recorded who was the Mukhiya
of the village Pipradih who has also given the prior information in regard to
the commission of the said offence and in which he also corroborated the
prosecution story. In para-8 of the case diary the statement of Sadam
Ansari was recorded who also corroborated the prosecution story and also
stated that Qurban Ansari and alongwith other persons used to conduct
the work of detection of the sex of the fetus in the said house. In para-9
of the case diary statement of Irfan Ansari and in para-10 of the case diary
statement of Kishore Das were recorded who were also corroborating the
prosecution story stated that Qurban Ansari used to bring the female
from the village for detection of the sex of the fetus in the said clinic. In
para-13 of the case diary the medicine which were recovered from the place
of occurrence were being seized in presence of independent witness Dhiraj
Kumar, Mukhiya Pipradih and Ramesh Yadav. In para-22 and 23 statement
of the witness Bipin Kumar and Ashok Prasad were also recorded, in which
they gave no any cogent material evidence supporting the prosecution story.
In para-42 of the case diary it is stated that the motorcycle which was left on
the very day of conducting raid at the house of that the man who has left the
motorcycle was Naresh Prasad who had come alongwith his wife Gunja
Devi. They went to the village Pipardih at the said clinic to take the
treatment at the behest of one Pawan Kumar and after concluding the
investigation the IO filed charge-sheet against both the accused persons
under section 275, 276, 336, 120B of IPC under section 40 and 41 of the
Clinical Establishment (Registration and Regulation) Act 2010 and section
27 and 27(A) of the Drugs and Cosmetic Act 1940.
5. It is also the settled proposition of the law as laid down by the
Hon'ble Apex Court in catena of case law that while framing the charge
the court concerned should not divulge in the evidence. The appreciation
of the evidence or marshalling of the evidence is not permissible at this
stage. The court cannot conduct the mini trial while framing the charge by
appreciating the evidence on record.
6. Herein it would be pertinent to give the following legal
propositions of law as laid down by the Hon'ble Apex Court.
6.1 In "Sanghi Brothers (Indore) Private Limited v. Sanjay
Choudhary and others" (2008) 10 SCC 681, the Hon'ble Apex Court has
held at para-11, which reads as under:
"11. Sections 227, 239 and 245 deals with discharge from
criminal charge. In State of Karnataka v. L. Muniswamy it
was noted that at the stage of framing the charge the court
has to apply its mind to the question whether or not there is
any ground for presuming the commission of offence by the
accused. The court has to see while considering the question
of framing the charge as to whether the material brought on
record could reasonably connect the accused with the trial.
Nothing more is required to be inquired into."
6.2 In "Rukmini Narvekar v. Vijaya Satardekar and others"
(2008) 14 SCC 1, the Hon'ble Apex Court has held at para-38, which reads
as under:
"38. In my view, there is no scope for the accused to produce
any evidence in support of the submission made on behalf at
the stage of framing charge only such material as are
indicated in Section 227 CrPC can be taken into
consideration by the learned Magistrate at that stage.
However, in a proceeding taken therefrom under Section 482
CrPC the court is free to consider material that may be
produced on behalf of the accused to arrive at a decision
whether the charge as framed could be maintained. This, in
my view, appears to be the intention of the legislation in
wording Sections 227 and 228 the way in which they have to
be worded as explained in Debendra Nath Padhi case by the
larger Bench therein to which the very same question had
been referred."
6.3 In "Palwinder Singh v. Balwinder Singh and others" (2008)
14 SCC 504, the Hon'ble Apex Court has held at para-13, which reads as
under:
"13. Having heard the learned counsel for the parties, we are
of the opinion that the High Court committed a serious error
in passing the impugned judgment insofar as it entered into
the realm of appreciation of the evidence at the stage of
framing charge itself. The jurisdiction of the learned Sessions
Judge while exercising the power under Section 227 of the
Code of Criminal Procedure is limited. Charge can be framed
on the basis of strong suspicion. The Marshalling and
appreciation of the evidence is not in domain of the Court at
the point of time. This aspect of the matter has been
considered by this Court in State of Orissa v. Debendra Nath
Padhi (2005) 1 SCC 568."
6.4 In "Central Bureau of Investigation v. Mukesh
Pravinchandra Shroff and others" (2009) 16 SCC 429, the Hon'ble Apex
Court has held at para-2, which reads as under:
"2. By the impugned order, the Special Court has discharged
the accused Raghunath Lekhraj Wadhwa, Jitendra Ratilal
Shroff and Mukesh Pravinchandra Shroff from Special Case
No. 4 of 1997. From a bare perusal of the impugned order, it
would appear that the Special Court has virtually passed an
order of acquittal in garb of the order of discharge. It is well
settled that at the stage of framing of charge, what is required
to be seen is as to whether there are sufficient ground to
proceed against the accused. In our view, the Special Court
was not justified in discharging the aforesaid accused
persons."
7. From the perusal of the allegations made in the FIR and also the
evidence collected by the IO there are sufficient material to proceed with
the trial against the accused petitioners for the offence under section 336
of IPC and section 40 and 41 of the Clinical Establishment (Registration
and Regulation Act) 2010; But for rest of the offence there are no sufficient
material on record to frame the charge.
8. It is pertinent to mention herein that under The Drugs and
Cosmetic Act 1940 any proceeding for prosecution can be initiated on the
basis of the complaint in view of section 32 of The Drugs and Cosmetic Act
1940. No direct FIR can be lodged.
9. In view of the above, the impugned order passed by the learned
court below needs interference and accordingly, this criminal revision
deserves to be partly allowed.
10. This criminal revision is partly allowed. The impugned order
passed by the learned court below is affirmed to the extent of framing
charges under section 336 read with 120B of IPC and section 40 and 41
of the Clinical Establishment (Registration and Regulation Act) 2010.
For rest of the offence i.e. under sections 275 and 276 of IPC and also
sections 27/27(a) of Drugs & Cosmetics Act no offence is made out against
the petitioner, accordingly, the same is, hereby, set aside.
11. Let a copy of this order be communicated to the court
concerned.
(Subhash Chand, J.)
RKM
