Jharkhand High Court
Md Munif @ Sardar Manifuddin Quraishi vs State Of Jharkhand on 25 February, 2009
Equivalent citations: 2009 CRI. L. J. (NOC) 929 (JHAR.), 2009 (2) AIR JHAR R 518 (2011) 2 JCR 219 (JHA), (2011) 2 JCR 219 (JHA)
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 886 of 2008
Md. Munif @ Sardar Manifuddin Quraishi
@ Munif Kasai............... Petitioner.
Versus
The State of Jharkhand..................... Opp. Party
......
Coram: Hon'ble Mr. Justice Amareshwar Sahay
......
For the petitioner : Mr. K.K.Mishra, Advocate
For the Opp. Party : Mr. I.N.Gupta, A.P.P.
......
5/25.02.2009Heard the counsel for the parties and with their consent this application is being disposed of finally at the stage of admission itself.
In this application, the petitioner has challenged the order dated 07/08/2007, whereby the learned Chief Judicial Magistrate, Hazaribagh, took cognizance of the offence under Sections 147, 148, 149, 307, 302, 323, 324, 326, 427/34 IPC and Section 27 of the Arms Act.
The facts, in short giving rise to this application, are that one Rafat Imam lodged a first information report before Hazaribagh Sadar Police Station on 30/01/2007 being Hazaribagh Sadar P.S. Case No. 77/2007, which was initially registered under Sections 147, 148, 149, 307, 341, 323, 324, 326, 427 IPC and Section 27 of the Arms Act. Subsequently, Section 302 IPC was added since the victim died.
The FIR was registered against 13 named accused and 20 unknown persons. It was alleged therein that on 29/01/2007 as usual during the Moharam festival the informant and others had taken out a 'Tajia' procession in memory of Sahadat day of Hajrat Imam Hussain and had kept the same near Imambara and were preparing for 'Fatiha' prayer, at that time, some antisocial elements of Kasai Muhalla armed with Revolver, Lathi, Sword, Gupti, Iron rod, Bhala and also burning -2- 'Lookari' shouting slogan of Ya Ali came there and started rotating the burning Llookari dangerously. At this, Khalifa Kalimullah asked them not to do so as because it may burn 'Tajia' and nearby shops and houses. At this, at the instigation of Babloo and Munif to kill the persons who were against their procession, Babloo, with intention to kill, assaulted Kalimullah with Sword on his head, due to which he fell down on the earth. When Amanullah came forward to save him, he was assaulted by Md. Israil Kasai on his stomach by Gupti. Md. Israil Kasai also asked his companions to assault everybody after dragging them out from the house. It was further alleged that when Imran went to save Kallimullah and Amanullah, he was assaulted on his head by Kalu Kasai and Md. Israil Kasai by 'Lathi' and 'Gupti' and when Imam came forward to save Imarn, he was assaulted by Ashraf Kasai on his face by burning Masal. In the meantime, Md. Amin and Bablu Kasai fired from their respective Pistols, the bullets of which, hit the shutter of Bihar Hotel and a Radio shop. They also damaged the furniture of some of the shops of the area and threatened that anybody who will give evidence against them would be killed.
The petitioner was also named in the aforesaid FIR as one of the accused. The police took up the investigation and, thereafter, on completion of investigation, submitted charge sheet only against nine accused named in the FIR. So far as against this petitioner and two other accused, who were also named in the FIR, no charge sheet was submitted by the police.
The grievance of the petitioner is that though the police did not submit charge sheet against him but the learned Chief Judicial Magistrate wrongly and illegally by order dated 07/08/2007 after perusal of the FIR, case diary and other materials, held that there appears sufficient grounds for proceeding against the petitioner and -3- two others, who were not charge sheeted and, thereby, took cognizance of the offence under Sections 147, 148, 149, 307, 302, 323, 324, 326, 427/34 IPC and Section 27 of the Arms Act against 10 persons including this petitioner and issued processes.
It has been submitted on behalf of the petitioner that since the present case, in which the charge sheet was submitted by the police for the offence, which are exclusively triable by the Court of Sessions and, therefore, the learned Chief Judicial Magistrate, had no jurisdiction to add the petitioner or anyone as the accused. No cognizance against him could have been taken. According to the learned counsel for the petitioner, in view of the judgment of the Supreme Court in the case of "Kishori Singh & Others- versus- State of Bihar & Another, reported in (2006) 1 SCC (Cri.) 275" only at the stage of session trial if any evidence would come against any person not being an accused then the trial court may add any other person, who has not charge sheeted by the police as an accused in exercise of the powers under Section 319 Cr.P.C. and not otherwise.
From the judgment cited on behalf of the petitioner it appears that exactly in the similar case as the present one the Supreme Court by relying its earlier decision rendered in the cases of "Raj Kishore Prasad- versus- State of Bihar, reported in (1996) 4 SCC 495"
and "Ranjit Singh- versus- State of Punjab, reported in (1998) 7 SCC 149"
held that:-
"Magistrate could not have issued process against those persons, who may have been named in FIR as accused persons, but not charge sheeted in the charge sheet that was filed by the police under Section 173 Cr.P.C. Those persons, against whom charge sheet has not been filed they can be arrayed as "accused persons" in exercise of the powers under Section 319 Cr.P.C. when some evidence or -4- materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge sheet.
Having heard the parties and having gone through the judgments of the Supreme Court, cited above, in my view, the present case is fully covered by the aforesaid decision of the Supreme Court.
In this view of the matter, I hold that the learned Chief Judicial Magistrate had no jurisdiction to take cognizance for the offence under Section 147, 148, 149, 307, 302, 323, 324, 326, 427/34 IPC and Section 27 of the Arms Act against the petitioner when he was not charge sheeted by the police.
Accordingly, this application is allowed. The order taking cognizance dated 07/08/2007 against this petitioner in connection with Hazaribagh Sadar P.S. Case No. 77/2007, corresponding to G.R. No. 328/2007 is hereby quashed. However, it is observed that if during the trial any evidence is brought on record against any other person including the petitioner, who have not been charge sheeted showing their involvement in the alleged offence then in that case, the learned Sessions Judge would be at liberty to add those person/persons as accused in the case in exercise of the powers under Section 319 Cr.P.C.
(Amareshwar Sahay, J) SI-Mukund/-