Jharkhand High Court
Ajay Kumar Choudhary vs The State Of Jharkhand on 31 July, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 3497 of 2017
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1. Ajay Kumar Choudhary
2. Shyam Sunder Verma ..... Petitioners
-- Versus --
1.The State of Jharkhand
2.Neelam Devi ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Nishant Kumar Roy, Advocate For the State :- Mr. Sunil Kumar Dubey, A.P.P. For the O.P.No.2 : Mr. Lakhan Chandra Roy, Advocate
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05/31.07.2023 Heard Mr. Nishant Kumar Roy, the learned counsel appearing on behalf of the petitioners, Mr. Sunil Kumar Dubey, the learned counsel for the State and Mr. Lakhan Chandra Roy, learned counsel for the O.P. No.2.
2. This petition has been filed for quashing the entire criminal proceeding including order taking cognizance dated 06.11.2017 passed in G.R. Case No. 235 of 2011, arising out of Madhupur P.S. Case No. 78 of 2011, pending in the Court of learned S.D.J.M., Madhupur.
3. Learned counsel for the petitioners submits that though the petitioners are named in F.I.R but the final form has been submitted in favour of the petitioners and on the basis of postmortem report and two affidavits sworn by witnesses, learned court differing with the final form has taken cognizance under sections 302 and 120B/34 of the I.P.C. He submits that the deceased was working as a compounder in the clinic of the petitioner no.1 who happens to be doctor practicing at Madhupur. He submits that the learned court has only referred the final form and 2 considering two affidavits and post mortem report has taken cognizance presuming that murder by these petitioners cannot be ruled out. He submits that prima facie materials are required to be disclosed in such a situation. To buttress this argument, he relied in the case of "Harischandra Prasad Mani & Ors. V. State of Jharkhand"
reported in AIR 2007 SC 1117 wherein in para 10 to 16 the Hon'ble Supreme Court has held as under:' "10. The death certificate dated 12-10-2001 in respect of the deceased Rajnish Kumar was issued by the medical officer of Brindavan Hospital & Research Centre, Hazaribagh, which states that the cause of death is cardiorespiratory arrest.
11. Learned counsel for the complainant submitted that the deceased had no history of cardiac problems. It is well known that even persons with no history of heart problem can suffer a heart attack and can die. Moreover, in the present case the learned counsel for the appellant has shown us the medical reports of the cardiologist of Patna which show that the deceased Rajnish Kumar was a patient of severe hypertension (blood pressure) for a very long period. Hence, it cannot be said that Rajnish Kumar had no medical problems which could lead to his heart attack. It is well known that blood pressure, diabetes, is a silent killer.
12. The complainant has alleged that Rajnish Kumar was killed by poisoning, but there is no iota of material that any poison was administered to Rajnish Kumar. There is nothing in the medical evidence showing that the dead body of Rajnish Kumar had any poison in it. It appears that Rajnish Kumar had vomited in the hospital when he was admitted, but the police did not take any sample of the vomit for sending it to some laboratory for chemical analysis where it could have been established whether he had been given any poison. It appears to us that cognizance has been taken on pure conjectures and surmises.
13. It is well settled by a series of decisions of this Court that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused vide R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : (1960) 3 SCR 388 : 1960 Cri LJ 1239] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 :
1993 SCC (Cri) 36] , Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 2 SCR 336 : (1964) 1 Cri LJ 1] , State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89 : 2002 SCC (Cri) 539] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] .
14. In the present case, there is not even an iota of material indicating the guilt of the accused persons. It is true that at the stage of taking cognizance adequacy of evidence will not be seen by the court, but there has to be at least some material implicating the accused, and cognizance cannot be taken merely on the basis of suspicion as it appears to have been done in the present case. To take a contrary view would only lead to harassment of people.
15. No doubt, it has been alleged in the complaint that the wife of the deceased was having an affair with Accused 2, 3 but this itself is only a suspicion and cannot be the basis of a conviction. Similarly, the fact that the in-laws of the deceased did not take part in his cremation is not evidence to show their guilt.
16. In our opinion, since there is no material on the basis of which cognizance was taken, we quash the order dated 12-
4-2005 taking cognizance of the offence. Resultantly, the impugned judgment of the High Court is set aside and the appeal is allowed."
4. On the other hand, Mr. Lakhan Chandra Roy, learned counsel for the O.P. No. 2 submits that the learned court differing with the final form has taken cognizance.
5. Learned counsel for the State submits that though final form was submitted in favour of the petitioners however the learned court has taken cognizance.
6. In view of above submissions of the learned counsels for the parties, the Court has gone through the materials on record including cognizance order and finds that learned court has not recorded what are the prima facie materials for taking cognizance under section 302 and 120B/34 of the I.P.C. Final Form was in favour of the petitioners. There is no doubt that the learned court can take cognizance. Further the final form was in favour of the petitioner in view of that at least what are the prima facie materials, are required to be disclosed in order taking cognizance which is lacking in the case in hand.
7. According, order taking cognizance dated 06.11.2017 passed in G.R. Case No. 235 of 2011, arising out of Madhupur P.S. Case No. 78 of 2011, pending in the Court of learned S.D.J.M., Madhupur is set aside.
8. The matter is remitted back to the learned court to pass order afresh in accordance with law.
9. This petition stands disposed of. Pending I.A, if any, stands disposed of. Interim order is vacated.
( Sanjay Kumar Dwivedi, J.) satyarthi