IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 816 of 2009
1. Sheikh Nezam Pahalwan @ Nezamuddin @ Sheikh Nezam
2. Md. Ashraf @ Md. Ashraf Quraishi ..... ... Petitioners
Versus
The State of Jharkhand & another ..... ... Opposite Parties
--------
CORAM : HON'BLE MR. JUSTICE H. C. MISHRA
------
For the Petitioners : M/s Md. Zaid Ahmad
& J.K.Mishra, Advocates
For the State : A.P.P.
------
6/ 09.09.2011
Heard learned counsel for the petitioners and learned A.P.P. for
the State.
The petitioners have challenged the order dated 7.8.2007 passed
by the Chief Judicial Magistrate, Hazaribagh in G.R. No. 328 of 2007 arising
out of Hazaribagh Sadar P.S. Case No. 77 of 2007, whereby cognizance of the
offences has been taken against them along with other co-accused persons.
Learned counsel for the petitioners has submitted that after
investigation, the police has submitted charge sheet against other co-accused
persons, but so far as these petitioners and one Md. Munif @ Sardar
Munifuddin Quraishi @ Munif Kasai were concerned, it was stated that there
were insufficient evidence against them. In spite of the said fact, cognizance
had been taken by the court below against these petitioners as also against the
said, Md. Munif @ Sardar Munifuddin Quraishi @ Munif Kasai, whose case
stands exactly on the similar footing as that of these petitioners. Learned
counsel has pointed out that said co-accused Md. Munif had filed a quashing
petition being Cr.M.P. No. 886 of 2008 before this Court, which was allowed
by order dated 25.2.2009, holding that the court below had no jurisdiction to
take cognizance against the said petitioner and it was observed that if during the
trial, any evidence is brought on record, the learned Sessions Judge would be at
liberty to add him as an accused in exercise of the power under Section 319 of
the Cr.P.C. Learned counsel has, accordingly, submitted that the case of these
petitioners stands exactly on the similar footing and has prayed for quashing of
the order taking cognizance against these petitioners as well.
Learned A.P.P. though has opposed the prayer, but has very fairly
conceded that in similar circumstance, the aforesaid order was passed by this
Court in the case of Md. Munif Kasai.
In the aforesaid facts and circumstances of this case, I am of the
considered view that the petitioners are also entitled to the same relief.
Accordingly, this application is allowed and the cognizance taken
against these petitioners in Hazaribagh Sadar P.S. Case No. 77 of 2007
corresponding to G.R. No. 328 of 2007 by the impugned order dated 7.8.2007
is, hereby, quashed. It goes without saying that if any evidence is brought on
record against these petitioners in course of the trial, the trial court would be at
liberty to pass any order in accordance with law, in exercise of the power under
Section 319 of the Cr.P.C..
( H. C. Mishra, J.)
R.Kr.