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2006 DIGILAW 1380 (JHR)

Mohd. Zahir Ansari v. State Of Jharkhand

2006-12-01

DILIP KUMAR SINHA

body2006
JUDGMENT D.K. Sinha, J. 1. The petitioner, Mohammad Zahir Ansari has preferred this quashing petition under Section 482 of the Code of Criminal Procedure against the impugned order dated 26.5.2006 passed by the Additional Sessions Judge, (F.T.C. II) Bokaro in Cr. Revision No. 39 of 2006 whereby and whereunder the order passed by the Additional Chief Judicial Magstrate, Bermo at Tenughat in C.P. Case No. 318 of 2006 on 22.2.2006 was set aside by the Additional Sessions Judge with the direction to the Additional Chief Judicial Magistrate to pass an order afresh in accordance with law. 2. The brief fact of the case is that the petitioner, Mohammad Zahir Ansari had filed a complaint case No. 215 of 2004 against the accused Hadish Ansari and six other for the offence under Section 376/302/202/34 of the Indian Penal Code in the Court of A.C.J.M., Bermo at Tenughat which was sent to Petarwar police station under Section 156(iii) of the Cr PC for institution of FIR and to submit report after investigation. On such direction Petarwar P.S case No. 140 of 2004 was instituted under the aforesaid section of IPC against the accused persons but the police after investigation submitted final form with the endorsement "false and clueless". The petitioner then filed a protest petition which was treated as Complaint Case No. 318 of 2005 and the witnesses were examined in course of enquiry. In the meantime a petition for withdrawal of the complaint case was filed by the petitioner on 21.2.2006 and by order of the A.C.J.M., Bermo at Tenughat dated 22.2.2006 the complaint case was permitted to be withdrawn and the same was dismissed. 3. Against the said order the opposite-party No. 2 Satya Narayan Dey, Advocate of the petitioner preferred a Cr. Revision No. 39 of 2006 and the learned Additional Sessions Judge F.T.C. II, Bokaro by a detailed order dated 26th May, 2006 set aside the order dated 22.2.2006 passed by the A.C.J.M. with the direction to the Court below to pass order afresh. 4. The factual matrix of the case was that the petitioner Md. Jahir Ansari of village Sadmakala, P.S. Peterwar had two daughters Anjum (since deceased) aged about 15 years and Taranum Bano aged about 12 years. It was stated in the complaint case that on 6.6.2004 Jahir Ansari and his wife went to Khetko but could not return in night. 4. The factual matrix of the case was that the petitioner Md. Jahir Ansari of village Sadmakala, P.S. Peterwar had two daughters Anjum (since deceased) aged about 15 years and Taranum Bano aged about 12 years. It was stated in the complaint case that on 6.6.2004 Jahir Ansari and his wife went to Khetko but could not return in night. However, in the morning next he received telephonic message that his elder daughter Anjum was admitted in Leela Janki Hospital, Petarwar in precarious condition. He immediately rushed to the hospital with his wife and found his daughter unconscious lying on a bed and surrounded by many villagers. He was appraised that in the last night Idrish Ansari after entering his house committed rape on Anjum and on alarm Idrish along with other accused administered poison to Anjum. On arrival of the witnesses Anjum narrated that she was ravished by the accused Idrish and thereafter other accused administered some liquid. The Doctor attending the victim Anjum took in possession of the phyle of poison. However, Anjum succumbed at about 2 p.m. On the same day an Assistant Sub-Inspector of Police of Peterwar police station came to the hospital and obtained the signature of the informant/petitioner on a plain paper. Later on dead body of Anjum was buried and thereafter, a meeting was held in the village in which Jubed Ansari, his sons and family members were held guilty for committing murder of Anjum and fine of Rs. 20,000/- was imposed upon them. An agreement was prepared in this regard which was signed by Jubed Ansari, Jahir Ansari and eight other panches. 5. After final report was submitted by the police in Petewar P.S. Case No. 140 of 2004, the petitioner filed a protest petition which was treated as Complaint Case No. 318 of 2005 by the ACJM and after statement of the petitioner on solemn affirmation, four witnesses were examined on behalf of the complainant including Julekha Khatoon in course of the enquiry and after examination of the witnesses before charge, the evidence was closed on 7.2.2006 and the case was posted on 22.2.2006 for orders. In the meantime a petition was filed by the petitioner/informant on 21.2.2006 for withdrawal of the complaint case and on the basis of the compromise it was permitted to be withdrawn by order dated 22.2.2006 and accordingly the complaint case was dismissed. 6. In the meantime a petition was filed by the petitioner/informant on 21.2.2006 for withdrawal of the complaint case and on the basis of the compromise it was permitted to be withdrawn by order dated 22.2.2006 and accordingly the complaint case was dismissed. 6. I have gone through the order passed by the Additional Sessions Judge in Cr. Revision No. 39 of 2006 who has categorically assailed the order passed by the ACJM, Bermo at Tenughat. The learned revisional Court observed: Once the protest petition was treated as complaint the learned lower Court has only two options either to pass order under Section 203 or under Section 204 of the Cr PC and no third option was open to the learned lower Court. It is another matter that the learned Court would have taken recourse of Section 173(8) of the Cr PC as there is material on record that Anjum was referred to Ranchi by Leela Janki Hospital and during course of journey she died. If it is so the bed head ticket, treatment given to Anjum during her stay in Leela Janki Hospital and the Doctor who was attending to her are some of the facts which should have been thoroughly investigated. The investigation officer has not taken care to examine the doctor concerned even taking his statement regarding condition of Anjum when she was admitted in Leela Janki Hospital. The Court is not a mute expectator rather the duty of the Court is to deliver justice. Once the complaint is filed related with the occurrence triable exclusively by the Court of Sessions the enquiring Court must record statements of all the witnesses and procure the related documentary evidences. The learned trial Court further observed: Once the case is filed under Section 302/376/201/34 of the Indian Penal Code, the Court should not have allowed to withdraw the same as these sections does not come within the purview of Section 320 of the Cr PC. The learned trial Court further observed: Any compromise entered upon between the parties at any stage (either during enquiry or during trial) cannot be allowed by the Court and on this basis the Court should not have ordered to withdraw the complaint. 7. The learned trial Court further observed: Any compromise entered upon between the parties at any stage (either during enquiry or during trial) cannot be allowed by the Court and on this basis the Court should not have ordered to withdraw the complaint. 7. Upholding the above observation I find that the learned ACJM, Bermo at Tenughat has grossly erred by allowing the petitioner/Informant to withdraw the complaint case In which in course of enquiry under Section 202 of Cr PC there were materials prima facie for the offence under Section 302/376/201/34 of the Indian Penal Code against the accused. 8. I find substance In the observation of the Revisional Court that Additional Chief Judicial Magistrate, Bermo at Teneghat has acted beyond his jurisdiction by the order dated 22.2.2006 in Complaint Case No. 318 of 2006 for the offence which was exclusively triable by the Sessions Court. In view of the above I find that the order passed by the Additional Sessions Judge (F.T.C. II) Bokaro is well discussed, based upon the provisions of law in Cr. Revision No. 33 of 2006 which does not call for interference and it is upheld and maintained. 9. There being no merit, this petition filed under Section 482, Cr PC is dismissed.