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2022 DIGILAW 473 (JHR)

Nageshwar Sahu @ Lepa v. State of Jharkhand

2022-04-20

SANJAY KUMAR DWIVEDI

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JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Deepak Kumar, learned counsel for the petitioners, Mr. Rajesh Kumar Singh, learned counsel for opposite party no. 2 and Mr. Sunil Kumar Dubey, learned counsel for the State. 2. This petition has been taken through Video Conferencing in view of guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. This petition has been filed for quashing of the order taking cognizance dated 26.02.2015, whereby the learned Judicial Magistrate took cognizance of the offence under Section 147, 149, 304 of the Indian Penal Code against the petitioners in Protest-cum-Complaint Case No. 3156 of 2014, pending in the court of the learned Judicial Magistrate, Ranchi. 4. The prosecution case is based on protest-cum-complaint petition filed by Maqbool Ansari against the petitioners. The complainant/informant earlier lodged the case and subsequently the police has submitted final form thereafter a protest-cum-complaint case being No. 3156 of 2014 was filed and in the complaint case, it was alleged that on 01/02.11.2013 at about 02:00 a.m. all accused persons/petitioners assaulted Tafajul Ansari @ Kolha in the house of accused persons by the means of Lathi and other dangerous weapons on his face and thrown him from the roof of the house, due to which Tafajul Ansari sustained grievous injuries over the face and his entire body. He was taken to the referral hospital Mandar for treatment, from there he was referred to RIMS for better treatment. On the way to RIMS, Tafajul Ansari told and disclosed before the witnesses and the complainant of the case about the alleged occurrence. He was admitted in RIMS but at about 12:00 p.m. on 02.11.2013 he died during treatment. The police deliberately without proper enquiry and investigation submitted final form in the case and hence the protest-cum-complaint case was filed by the complainant. It was further alleged that the said deceased was brutally assaulted by the accused person and the said injured already stated the facts to the complainant on the way while he was taken for treatment to RIMS, Ranchi and as such the accused persons brutally murdered the said deceased and in collusion and connivance the police has submitted final form and, hence, the complaint case was filed. 5. Mr. 5. Mr. Deepak Kumar, learned counsel for the petitioners submits that initially the complainant namely Maqbool Ansari had filed a case for the same incident with Mandar Police Station vide Mandar P.S. Case No. 118 of 2013 registered under Section 147/304 of the Indian Penal Code alleging therein that in the night of 1-2/11/2013 at about 02:00 a.m. in the night his nephew Sanjay Ali @ Bablu telephonically informed him that Kolha uncle i.e. the deceased Taffazul Ansari had entered in the house of Nageshwar Sahu and felled down from the roof of the house on account of which his leg has been fractured and after getting the information, the informant along with one Shamim Akhtar went to the house of Nageshwar Sahu where Kolha was not there and Nageshwar Sahu disclosed that he had entered in their house and while fleeing away he jumped from the roof of the house due to which he had sustained injuries. He further submits that after investigation the police has submitted final form against the petitioners and the allegations were not found true and specially it has come that the deceased was a habitual thief and was indulged in several cases and while committing theft in the house of Nageshwar Sahu in order to flee away from there, he jumped from the roof of house and sustained injuries and subsequently died. He also submits that after submission of the final form, protest-cum-complaint case was filed and thereafter cognizance has been taken vide order dated 26.02.2015. He further submits that the petitioner has also lodged FIR against Kolha Ansari before the police which was registered as Mandar P.S. Case No. 117 of 2013 in which after investigation the police has opined that the case is true and since the accused died, the final form was submitted against the accused-Kolha Ansari. He further submits that in the said FIR, it has been disclosed that one person has entered in the house of Nageshwar Sahu and made hulla and thereafter fled away. He submits that during investigation the police found that the accused-Kolha Ansari was professional thief and he was having criminal antecedents and other cases, which has also been disclosed in the counter affidavit filed by the State. 6. On the other hand, Mr. Rajesh Kumar Singh, learned counsel for opposite party no. He submits that during investigation the police found that the accused-Kolha Ansari was professional thief and he was having criminal antecedents and other cases, which has also been disclosed in the counter affidavit filed by the State. 6. On the other hand, Mr. Rajesh Kumar Singh, learned counsel for opposite party no. 2 submits that the witnesses have supported the case of opposite party no. 2 and it is an admitted fact that the deceased has died. He further submits that the petitioners have brutally assaulted the deceased Tafajul Ansari @ Kolha in the house and thrown him from the room of the house due to which he died. According to him, there are allegations against the petitioners and this Court may not interfere with the impugned order. 7. Mr. Sunil Kumar Dubey, learned counsel for the State by way of referring counter affidavit submits that detailed counter affidavit has been filed on behalf of the State and entire facts have been disclosed. 8. On perusal of the impugned order taking cognizance, it transpires that the learned court on the solemn affirmation of the complainant and statement of enquiry witnesses, has taken cognizance vide order dated 26.02.2015. It is an admitted fact that the case lodged by the opposite party no. 2 was investigated by the police, wherein, final form was submitted and allegations were not found true and thereafter protest-cum-complaint case was filed. The petitioner no. 1 earlier lodged FIR against the deceased-Kolha Ansari which was registered as Mandar P.S. Case No. 117 of 2013, dated 02.11.2013, wherein after investigation the police found the allegation true against the deceased. In the said case, it was alleged that one person has entered into the house and raised alarm and fled away. In that case, the police submitted final form and the allegation against the deceased was found true. The evidence of enquiry witnesses have also been annexed with this petition. The enquiry witnesses have given contradictory statements which are not consistent to the allegations. It has been disclosed in paragraph 15 of the counter affidavit filed by the State that the deceased was not in a position to speak anything when he was brought to the hospital. In view of the statement in the counter affidavit of the State, the contention of Mr. Rajesh Kumar Singh, learned counsel for opposite party no. It has been disclosed in paragraph 15 of the counter affidavit filed by the State that the deceased was not in a position to speak anything when he was brought to the hospital. In view of the statement in the counter affidavit of the State, the contention of Mr. Rajesh Kumar Singh, learned counsel for opposite party no. 2 that the deceased himself has disclosed the name of the petitioners about throwing him from the house, is not found to be true. The deceased was having criminal antecedents and three cases i.e. Mandar P.S. Case No. 49/99, dated 08.07.2009, Kuru P.S. Case No. 62/2002, dated 16.08.2002 and Mandar P.S. Case No. 77/05, dated 16.11.2005 had been registered against the deceased. 9. In view of the these facts, it appears that the protest petition was not fit to be entertained by the learned court below. Moreover, the learned court below while taking the cognizance order, has not provided reason of differing with the final form and only the solemn affirmation of the complainant and statements of enquiry witnesses have been disclosed in the order taking cognizance, which is not in consonance with law. The jurisdiction of the learned Magistrate is there to differ with the final form while taking the cognizance, but reason is required to be disclosed in the cognizance order, which has not been done in the impugned order. 10. In view of the above facts and reasons, the entire criminal proceeding including the order taking cognizance dated 26.02.2015 passed by the learned Judicial Magistrate, Ranchi in Protest-cum-Complaint Case No. 3156 of 2014, pending in the court of the learned Judicial Magistrate, Ranchi is, hereby, quashed. 11. Accordingly, this petition stands allowed and disposed of. 12. Consequently, I.A. No. 5836 of 2018 and I.A. No. 1060 of 2020 stand disposed of.