Jharkhand High Court
Harish Kumar Pathak vs The State Of Jharkhand ...... Opposite ... on 18 December, 2018
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No.4304 of 2018
Harish Kumar Pathak ...... Petitioner
Versus
The State of Jharkhand ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioner : Ms. R.S. Mazumdar, Advocate
For the State : A.P.P
For the Informant : Mr. A. Allam, Sr. Advocate
Ms. Priya Shreshtha, Advocate
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CAV on: 04/12/2018, Pronounced on:18/12/2018
1. The petitioner is apprehending his arrest in connection with Narayanpur P.S. Case No. 154 of 2016, corresponding to G.R. No. 876 of 2016, registered under Sections 354, 341, 342, 323, 325, 307, 504, 506 and 34 of the Indian Penal Code lodged on the basis of written report of informant- Ajhola Bibi who in her typed report submitted to the S.P., Jamtara, alleged that her son Minhaz Ansari was working in Kolkata and on 03.10.2016 while he visited his home he was picked up by the then officer-in-charge of Narayanpur P.S. and when the police checked her son's mobile phone some enquiry the police made from him after having seen a photo on the WhatsApp and her son told police that he had no knowledge about the aforesaid photo and his mobile set was illegally used by some persons.
2. It has also been narrated by the informant in her typed report that the officer-in-charge forcibly took her son to the police station and she also went to the police station where her son was brutally assaulted by fists and sticks by the officer-in-charge and when she asked the officer- in-charge not do so, then officer in charge assaulted the informant as a result of which her bangles were broken and her cloth were torn.
3. It has also been narrated by the informant in her typed report that her son become senseless after being assaulted by the Officer in charge and he was taken to Government Hospital, Narayanpur, from where the doctors referred him for better treatment to some other hospital and her son was taken to PMCH, Dhanbad, for better treatment while he was senseless.
4. It has also been narrated by the informant in her typed report that doctor had told her that her son was brutally assaulted and he had sustained internal injuries, as a result of which he become senseless and it cannot be said whether he will survive or not.
5. On the basis of these allegations the instant case has been instituted.
Submissions on behalf of the petitioner-
6. Learned counsel for the petitioner has submitted that petitioner is innocent and he has been falsely implicated in this case as he has not committed any offense.
7. Learned counsel for the petitioner has further submitted that the entire occurrence, alleged in the First Information Report, is false, concocted and fabricated.
8. It is further submitted that the petitioner was the then Officer-in- Charge of the said police station. It is stated that the occurrence took place on 03.10.2016, but the information was given to the police on 06.10.2016 but said delay in lodging the case has not been explained by the informant.
9. Learned counsel for the petitioner states that, in fact, the police had received an information on 03.10.2016 against the son of the informant for which a case under Section 153(A), 295, 295(A), 509 Indian Penal Code and 67 of the Information Technology Act was lodged and the same was registered as Jamtara Narayanpur P.S. case no.153 of 2016 on 04.10.2016 and, thereafter, the case was investigated and charge sheet was submitted under the aforesaid Sections.
10. The petitioner, namely, Harish Pathak, the then Officer in Charge himself has recorded his statement 04.10.2018, wherein he has stated as follows:
"That on 03.10.2016, he received information that one Jyoti Club, Jumman More Whatsapp Group on 10.06.2016 on the eve of Gandhi Jayanti at 22 hours bearing mobile no.7739088117 have uploaded several obscenes photographs relating to sentiments of the majority community of the Hindu and there is worship in the Hindu community. And after lodging sanha he apprised the senior officers. And after technical verification of aforesaid mobile no.7739088117 from which obscene photographs were uploaded, it was found that the aforesaid Mobile belongs to Umar Mian, son of Wahid Mian resident of Dighari, Chainpur but the same was being used by his son Minhaz Ansari.
It is further alleged that at 11 A.M. he received information from his police spy that Minhaz Ansari is present on his mobile shop. Whereupon Harish Pathak along with police personnel reached there at 11:50 A.M. by their private motor cycle. Noticing the police, one person were apprehended, who disclosed his name as Minhaz Ansari. He was searched and from his left pocket of his pant one SIM card and from his right pocket of his pant one Samsung Mobile phone were recovered. Thereafter, seizure list was prepared and Minhaz Ansari was arrested and brought to the police station. He made confession that on the eve of Bakrid he has taken several obscene photographs and uploaded the same from the aforesaid mobile number which contained the slaughtering of cows.
11. A supplementary affidavit has been filed on behalf of the petitioner bringing on record certain documents regarding the Press Conference headed by Superintendent of Police, Jamtara, in presence of the media, in which he has stated that pursuant to Jamtara P.S. No.153/2016 dated 04.10.2016, registered under Sections 153 A, 295, 295A, 509 IPC and Section 67 of the IT Act against Minhaj Ansari, showing that the deceased was brought before the media but this fact was suppressed by the informant in the instant case.
12. Another supplementary affidavit has been filed on behalf of the petitioner wherein it is further stated that statement of two witnesses namely Sahban Ansari and Nasiruddin Ansari was recorded u/s 164 Cr.P.C. after two years, wherein they supported the facts of the case.
13. The statement of Nasiruddin Ansari was recorded on 12.04.2018, wherein he has supported the case that on 04.10.2016 Ajhola Bibi who is sister, has informed him that Minhaz Ansari was arrested by police in charge- Harish Pathak. Thereafter, when he reached the police station, he saw that Minhaz Ansari was being assaulted by Harish Pathak in Varandah.
14. The said statement was recorded on 12.04.2018 after lapse of two years, which appears to be afterthought. No reliance can be made on their evidences.
15. Learned counsel for the petitioner referred the post mortem report of the deceased conducted by the team of doctors while referring final cause of death in consonance with the PMR No.2307/16 dated 09.10.2016 reference letter no.109/CID dated 26.09.17 addressed to the Head of the Department of FMT RIMS, Ranchi for final opinion regarding the cause of death of deceased Minhaz Ansari, S/o Umar Ansari in consonance with PM Report No.2307/16 dated 09.10.2016.
16. From perusal of the Post Mortem Examination Report No.2307/2016 dated 09.10.2016 conducted by the Medical Board at RIMS, Ranchi and the Histopathological report issued from the Department of Pathology RIMS, Ranchi vide its Memo no.438 dated 03.07.17 (PM-466-475/17), the para-wise opinion is as under:
(1) Abrasions as mentioned in the P.M. Report No.2307/16 dated 09.10.16 are not Grievous in nature.
(2) Regarding the internal injury no.(I), it not possible to opine as to whether it is caused by trauma so called marpit or not. This injury does not appear Grievous in nature.
(3) The internal injury no.(I), per se, is not sufficient to cause death in ordinary course of nature.
(4) The internal injury no.(II), does not appear to be caused by trauma. The internal hemorrhage may be possible by gastritis also. (5) External injuries, per se, are not sufficient to cause death in ordinary course of nature.
(6)&(7) Cause of death is combined effects of injuries as noted in the P.M. Report No.2307/16, dated 09.10.16 and their complications in the form of congestions, hemorrhages and necrosis in the vital organs like Brain, Lung, Kidneys, Liver and gastrointestinal tract.
17. Further, I.A. No.8218/2018 was filed on 06.09.2018 by Ajhola Bibi- informant for intervention for impleading the informant as a party- opposite party no.2 in the instant application.
18. Vide order dated 28.09.2018, I.A. was allowed. Thereafter being the informant, she has filed a counter affidavit.
19. In the counter affidavit it has been stated that the son of the informant Minhaz Ansari arrested on 03.10.2016 and then on 04.10.2016, instead of remanding him to the proper court, he was produced before the Superintendent of Police, Jamtara. But later stage, due to ill health he was produced before the medical officer, who referred him to Jamtara Sadar Hospital, as he was seriously assaulted and finally he was referred to RIMS, Ranchi.
20. In the counter affidavit filed on behalf of O.P. No.2, it has been categorically stated that Minhaz Ansari had already died when he was taken to Patliputra Medical College and Hospital, Dhanbad for treatment, where this petitioner again filed FIR against the family members of the informant being Seraidhela P.S. Case No.134 of 2016 in order to save his skin and put pressures upon the family members of the deceased alleging therein that he was attacked by relatives of the deceased. It is further alleged that all the statements are false and concocted, which also needs CBI investigation and this prayer has also been made by the informant in W.P. (Cr.) No.68/2018.
21. Further it was submitted by the learned counsel for the petitioner referring to the reply to the counter filed by the informant that petitioner is key witnesses in W.P (Cr.) 312/2016 filed by Jawahar Yadav vs. The State of Jharkhand and others whereby the application has been filed for following reliefs:-
(i) For transfer of the investigation of Sadar (Satbarwa) P.S. Case No.349 of 2015, corresponding to G.R. No. 1118 of 2015 registered under sections 147, 148, 149, 353 and 307 of the Indian Penal Code, Sections 25 (1-b)A, 26, 27 and 35 of the Arms Act, under section 4 and 5 of the Explosive Substance Act and Section 17 of the Criminal Law Amendment Act, presently pending before the learned Chief Judicial Magistrate, Palamau at Daltonganj to the Central Bureau of Investigation (CBI) in which 12 persons were shown or claimed to have been killed in a police encounter.
(ii) If the Hon'ble Court desires so, instead of handing over the matter to the Central Bureau of Investigation, it may constitute a SIT headed by the Retd. Judge of the Hon'ble High Court and comprising of such officers of Jharkhand State, who have worked in the CBI or NIA in the past and have requisite experience to handle the investigation of complicated cases, to cause a detailed investigation of the said case and the investigation of the said SIT may be monitored by the Hon'ble High Court.
(iii) For any other suitable relief's to which the petitioner may be found entitled to in the eyes of law.
Rejoinder on behalf of petitioner to the counter affidavit filed on behalf of the informant.
22. In the counter affidavit it is stated that the petitioner has been sought to be implicated in the instant case, as a writ petition Criminal No.312/2016 was filed making allegations that State police officials and CRPF have killed 12 innocent persons including minors and falsely shown the said incident as Bakoria Encounter Case of maoist and the said incident was falsely claimed to be a police encounter. The petitioner was a crucial witness in the said case and vide order dated 22.10.2018 in Criminal Writ Petition No.312/16, a coordinate bench of this Court rejected the investigation carried out by CID and ordered for a CBI investigation into the said case. In order to force the petitioner to change his statement in the aforesaid Bakoria Encounter Case, petitioner has been implicated in the instant case.
23. It is also referred a case passed in W.P.(Cr.) No. 312/16 have process of the case investigation by the CBI and the Court under order dated 22.10.2018 which is as follows:-
"Since the investigation by the police was not making much headway and perhaps to restore sanity the investigation was handed over to the CID, which is another investigating wing of the State Government. The subject matter of Sadar (Satwarba) P.S. Case no. 349 of 2015 involves the liquidation of 12 persons dubbed extremists through an encounter by the police as claimed by the investigating agency and disbelieved by many as a cover up to the acts of JJMP and to glorify the so called police action. Dissenting voices have emanated in the form of the then DIG - Shri Hemant Toppo and officer in charge of Sadar P.S. Shri Harish Chandra Pathak who have convincingly doubted the story planted by the police. This case is one of the most highlighted and controversial cases in the State of Jharkhand. The public confidence has been shaken and eroded on the consequential ramifications of the so called encounter. The public confidence cannot be instilled if the State agencies continue to investigate when the needle of suspicion points to the police force itself. To quote the proverbial expression "Caeser's wife must be above suspicion".
In order to instill the confidence of the public in the law enforcing agencies and to uphold the dispensation of justice unfettered and uninfluenced by any outside force, the premier impartial investigating agency of the nation, the CBI has therefore to take up the investigation.
It is, therefore, directed that the Central Bureau of Investigation (CBI) (Respondent nos.7 and 8) shall take over the investigation of Sadar (Satwarba) P.S. Case No.349 of 2015 and shall conclude the same expeditiously and file a report as ordained by law before the trial court."
24. It appears that Debesh Kumar Bhagat, Police Inspector has submitted final form being Final Form No.195/18 dated 20.09.2018 registered under Section 304 IPC against the petitioner- Harish Pathak in connection with Narayanpur P.S. Case No. 154 of 2016.
25. Learned counsel for the petitioner has submitted that the investigation has now been completed and no case under Section 304 is made out against the petitioner and trial will take some time. Submissions of learned APP
26. The learned APP referred para 3 of the case diary wherein the informant- Ajhola Bibi in her subsequent statement recorded during investigation has supported the prosecution case.
27. In para 7 of the case diary, Assistant Sub Inspector, Raju Mahli of Narayanpur police station has stated that deceased- Minhaz Ansari accused in connection with Narayanpur P.S. Case no.153/2016 has been arrested by ex Sub Inspector- Harish Pathak and he was brought to the police station. Before sending him to the judicial custody, he felt ill health. Due to health condition, firstly he was referred to health center, Jamtara and thereafter he was referred to sadar hospital, Jamtara and again referred to PMCH, Dhanbad for better treatment and thereafter referred to RIMS, Ranchi and treatment was going on. He has not supported the occurrence regarding the assaulting and torturing the deceased- Minhaz Ansari by the petitioner.
28. Learned APP also referred the statement of Hazrat Ansari, who is brother of the deceased- Minhaz Ansari, recorded u/s 161 Cr.P.C. He supported the fact that when raid was conducted in the house of Minhaz Ansari, Harish Pathak was present there and was searching the laptop and mobile and also outraged the modesty of the women. Minhaz Ansari was kept in police lock up and Harish Pathak also used excessive force against him. Similar is the statement of Kadir Ansari recorded under Section 161 Cr.P.C.
29. Learned APP further submitted that it is admitted fact that the deceased was assaulted in police lock up by the petitioner and subsequently he died. The statement of informant was recorded under Section 164 of the Cr.P.C. who supported the fact regarding assaulting and torturing of the deceased by the petitioner, which goes against the petitioner and he does not deserve the anticipatory bail.
30. So far the statement made on behalf of the learned counsel for the petitioner that he has been falsely implicated in this case at the behest of the senior officer due to the reason that petitioner has doubted against the police personnel in CBI investigation.
31. The Hon'ble High Court had directed the CBI in W.P. (Cr.) No.312/2016 (Jawahar Yadav versus State of Jharkhand and others) to investigate the case and file a report to the trial court.
32. It was submitted that direction issued to the CBI is the out come of the offence committed by the petitioner.
33. Learned counsel for the informant opposed the prayer for anticipatory bail and submitted that Minhaz Ansari was died while he was in police custody due to physical assault upon deceased by this petitioner.
Heard the learned counsel for the parties.
34. After hearing the learned counsel for the petitioner, learned counsel for the O.P. No.2/informant and learned counsel for the State and after scrutinizing the facts and materials brought on record by the petitioner, counter affidavit, reply of the counter affidavit, case diary the following facts are admitted:
35. The petitioner- Harish Pathak was posted as officer in charge of Narayanpur P.S and on 03.10.2016, he received information against the deceased, Narayanpur P.S. Case No.153/2016 was instituted on 04.10.2016 and the deceased Minhaz Ansari was arrested and kept at local hazat. Further statement of informant under Section 164 Cr.P.C belatedly Sahban Ansari and Nasiruddin Ansari along with the informant supported the assaulting of the deceased in police custody. Further, he was treated at local primary health center and then Sadar hospital, Jamtara, treated in PMCH, Dhanbad and thereafter, RIMS, Ranchi and he died. Injury and mark of violence was found in the post mortem report. It is a case of violence in police custody, I am not inclined to admit the petitioner on anticipatory bail. Accordingly, the prayer for anticipatory bail of the petitioner is rejected.
(Anant Bijay Singh, J.) Pramanik/