Jharkhand High Court
Maisul Haque @ Maisul Hub vs The State Of Jharkhand ...... Opposite ... on 24 March, 2022
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 289 of 2021
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1. Maisul Haque @ Maisul Hub
2. Khairun Sheikh @ Md. Khairu Jaman @ Khairul Sheikh ...... Petitioners Versus The State of Jharkhand ...... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mr. Rajeev Sharma, Sr. Advocate For the State : Mr. Prabir Kr. Chatterjee ,A.P.P. Order No. 5/ Dated: 24.03.2022
1. This Criminal Revision No. 289 of 2021 has been filed on behalf of the petitioners u/s 397 /401 of Cr. P.C. to set-aside the order dated 18.03.2021 passed by the learned Additional Sessions Judge-I ,Pakur in Misc. Criminal Application No. 18 of 2020 (arising out of Maheshpur P.S. case No. 194/2015/G.R. No. 887/15) in S.T. No. 15 of 2018 whereby the learned Court has dismissed the petition filed by the petitioner under section 227 Cr.P.C. , declining to discharge the petitioners from their liabilities of the offences under sections 3, 4A,4B,4D and 5 of the Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005( hereinafter to be referred as J.B.A.P.S. Act, 2005).
2. As per FIR, it is alleged by Ajit Kumar, a villager that on 18.09.2015 at around 6:00 P.M. he stopped Tata Magic vehicle bearing no. "WB 53 A 5047" near a mandir at village Maheshpur and which was coming from Hiranpur side. It is stated that the officer -in -charge of Maheshpur PS also came there and alleged the seven (07) Nos. of cattle ( cows and bullocks) were being carried with their legs tied with cruelly. It is alleged that the cattle were being taken towards West Bengal for slaughter.
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3. Heard Mr. Rajeev Sharma learned Senior counsel appearing for the petitioner and Mr. P.K. Chatterjee, learned A.P.P. appearing for the State.
4. It is submitted by the learned Senior Counsel for the petitioners that the learned Court below committed illegality by rejecting the discharge petition filed on behalf of the petitioners under section 227 of Cr.P.C. It is submitted that the petitioners have got no concern with the seven (07) Bovine Animal. It is further submitted that the petitioner no. 1 is the Transporter of the Truck which was stopped by informant and which was further seized by the police under the instruction of the informant and the petitioner No. 1 has no knowledge as to where the animals had been taken.
It is further submitted that the petitioner No. 2 is the driver of the seized vehicle and he is also not aware as to where the animals were being transported and he was carrying the Truck under the instruction of the customer. It is further submitted that mere seizing the seven (07) Bovine Animals will not amount to presume that the same were being taken for slaughtering. It is further submitted that the learned Court below has wrongly relied upon the statements made in para 9, 10 and 19 of the case diary which contain the statement of witnesses namely Suraj Kumar, Chandan Roy and Golu Kumar respectively, who have stated that they had also seen the bovine animals loaded upon the vehicle and which were being transported by the petitioners and their associates.
It is further submitted that the petitioners have shown two (02) receipt in its Xerox copies , however the learned Court below wrongly rejected by observing that no detail as to when, by whom and for what purpose, the animals were being taken by the said vehicle.
-3 It is submitted that the petitioners are innocent and have committed no offence and they are admittedly owner and driver of the vehicle and not owners of bovine animals. It is submitted that on the facts alleged in the FIR, no offence under the Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005 is made out against the petitioners-transporters. It is submitted that there is no allegation that the seized vehicle with the bovine animal was being taken to West Bengal.
It is submitted that the export of bovine animals to another State for the purpose of slaughter is an offence under section 4(A) of the said Act and thus there must be specific allegation and sufficient evidence to prove that the bovine animals with the vehicle seized at Maheshpur were being taken to another State West Bengal for slaughter. It is submitted that non-examination and non- medical treatment of the alleged injuries of the bovine animals by any veterinary doctor falsifies the allegation that the seized bovine animals were found in injured condition. It is submitted the impugned order is wholly illegal for non-consideration and non- appreciation of the fact that no offence is made out under the said Act on the facts alleged in the FIR. It is submitted that in the absence of the allegation that the seized vehicle was taking the bovine animals to West Bengal, the prosecution case is an abuse of the processes of the Court and as such the petitioners are entitled to be discharged and have this Criminal Revision application is fit to be allowed.
Hence the order dated 18.03.2021 passed by the learned Additional Sessions Judge , Pakur in Misc. Criminal Application no. 18 of 2020 may be set-aside by allowing this Criminal Revision Application.
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5. On the other hand, the learned A.P.P. appearing for the State has opposed the prayer and submitted that impugned order passed by the learned Court below is fit and proper and no interference is required. It is submitted the petitioner no. 2 was caught red handed with seven (07) bovine animals which were seized by the police with help of local persons . It is submitted that it has come in the impugned order that witnesses namely Suraj Kumar, Chandan Roy and Golu Kumar respectively whose statements have been recorded in para 9, 10 and 19 of the case diary, have supported the case of the informant that the bovine animals loaded upon the vehicle, were being transported by the petitioners and their associates. It is submitted that the Xerox copy of two (02) receipt are not reliable and no details were mentioned, as to when and whom and what purpose the animals were carried by the said vehicle and hence this Criminal Revision No. 289 of 2021 is fit to be dismissed.
6. Perused the FIR and impugned order dated 18.03.2021 passed by the learned Court below and considered the submission of the both sides.
7. It transpires from the FIR that the informant had got stopped the Truck loaded with seven (07) Bovine animals. It transpires that the four persons were arrested including the petitioner no. 2 Khairun Sheikh @ Md. Khairu Jaman @ Khairul Sheikh , later on the police seized the vehicle and seized seven bovine animals ( Cow and OX) and which were said to be taken to West Bengal from Hirenpur .
8. It transpires , police has submitted that the charge sheet against the petitioner no. 1 & 2 and also against the person namely Jayant Sarkar, Krishna Mandal and Shadik Shekh under section 3/4 (A-B), 5 and 4D of the Jharkhand Bovine Animal Prohibition of
-5 Slaughter Act, 2005 .
9. It is relevant to quote section 4 (A) of the Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005.
Section 4(A) : Restriction on export:-
No person shall export or cause to be exported any bovine animals for the purpose of slaughter either directly or through his agent or servant or any other person acting on his behalf in contravention of the provisions of this act or with the knowledge that it will be or is likely to be slaughtered.
Definition of export-
Section 2(i) : 'export' means to take out of the State of Jharkhand to any other place out of the State of Jharkhand.
10. From perusal of the impugned order ,it transpires that that the while rejecting the discharge petition filed on behalf of the petitioner, the learned Court below has observed and discussed the statement of the witnesses namely Suraj Kumar, Chandan Roy and Golu Kumar recorded in the para 9, 10 and 19 of the case diary. The learned Court below also rejected photo copies of the two receipts filed on behalf of the petitioners by observing that the sanctity of the receipt cannot be looked into at this stage. The learned Court below has also observed that burden of proof of not committing the offence shall be on the petitioners in view provision of section 14 of the Act and the learned Court below also found that there are prima facie material to frame charges against the petitioners under section 3,4 and 5 of the the Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005 in question.
11.It is well settled that at the stage of framing of charges, the Court below cannot make roving inquiry into the defence of the accused person.
-6 12 . It has been held in the case of State of Rajasthan Vs. Ashok Kumar Kashyap reported in 2021 (XI) S.C.C. 191 at para 11, 11.1 11.2para 14 and 15 as follows:-
"Para 11. While considering the legality of the impugned judgment and order passed by the High Court, the law on the subject and few decisions of this Court are required to be referred to.
Para 11.1 . In P. Vijayan this Court had an occasion to consider Section 227 CR.P.C. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground from proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CR.P.C., if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the matter or into a weighing and balancing of evidence and probabilities which is rally the function of the Court, after the trial starts.
Para 11.2 . In the recent decision of this Court in M.R. Hiremath, on of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under; (SCC p.526)
-7 "2.5. The High Court ought to have been cognizant of the fact that the trial Court was dealing with an application for discharge under the provision of section 239 Cr.P.C. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the Court must proceed on assumption that the material which has been brought on the record by the prosecution is true and evaluated the material in order to determine whether the facts emerging from the material, taken on its face value , disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Ranjan, adverting to the earlier decisions on the subject, this Court held (SCC pp 721-22,para 29) "29.....At this stage, probative value of the material has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant a conviction . In our opinion what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the Court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; through for conviction, the Court has to come to the conclusion that the accused has committed the offence . The law does not permit a mini trial at this stage."
Para 14. As rightly observed and held by the learned Special Judge at the stage of framing of the charge, it has to be seen whether or not a prima facie case is made out and the defence of the accused is not to be considered. After considering the
-8 material on record including the transcript of the conversation between the complaint and the accused, the learned Special Judge having found that there is a prima facie case of the alleged offence under Section 7 of the PC Act, framed the charge against the accused for the said offence. The High Court materially erred in negating the exercise of considering the transcript in detail and in considering whether on the basis of the material on record the accused is likely to be convicted for the offence under Section 7 of the PC Act or not.
Para.15 As observed hereinabove, the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage if framing of the charge and /or considering the discharge application. The mini trial is not permissible . At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceed in virtually holding a mini trial at the stage of discharge application.
13. In view of the judgement of the Hon'ble Supreme Court as mentioned above and also on the facts of this case, this Criminal Revision no. 289 of 2021 is devoid of any merit and as such the Criminal Revision no. 289 of 2021 is dismissed.
14. Thus this Criminal Revision no. 289 of 2021 is hereby dismissed and stands disposed of.
(Sanjay Prasad, J.) Bibha/