Kamruddin Ansari vs The State Of Jharkhand ... Opposite ...
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Jharkhand High Court

Kamruddin Ansari vs The State Of Jharkhand ... Opposite ... on 2 September, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

           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
                                            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
                                              ------
                                        PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    Heard the parties.

2. 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.

3. 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

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 co-

accused persons threatening the deceased on 30.03.2008 as already indicated

above and only on the basis of the same, the learned Additional Sessions Judge-

III, 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.

4. 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:-

"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)

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.

5. 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.

6. 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

is lastly submitted that this Criminal Miscellaneous Petition, being without any

merit, be dismissed.

7. 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.

8. 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.

9. 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

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

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.

10. 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.

11. In view of the disposal of the Cr.M.P., interim relief granted earlier vide

order dated 22.01.2019 stands vacated.

12. Registry is directed to intimate the court concerned forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 02nd of September, 2024 AFR/ Saroj