Gauhati High Court
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GAHC010076922022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./372/2022
KHURSHID ALOM @ ALOM AHMED AND ANR
S/O SAFIQUE UDDIN
R/O VILL- BARBALI GAON, PO. BARBELI, DIST. HOJAI, ASSAM
2: JAMAL UDDIN
S/O LATE ABDUL JALIL
R/O VILL- BARBALI GAON
P.O. BARBELI
DIST. HOJAI
ASSA
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR N J DUTTA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
27.04.2022
Heard Shri NJ Dutta, learned counsel for the petitioners, who has filed this
petition under Section 482 of the Cr.PC being aggrieved by the orders dated
09.08.2021, 11.08.2021, 18.08.2021 and 19.08.2021 passed by the learned Chief
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Judicial Magistrate, Hojai at Sankardev Nagar in PRC Case No. 1109(H)/2021.
2. Also heard Shri BB Gogoi, learned Addl. Public Prosecutor, Assam.
3. At the outset, Shri Dutta, learned counsel has submitted that the case, in
the meantime, has been committed to the Court of the learned Sessions Judge, Hojai
in Sessions Case No.21(H)/2021 and charges have been framed under Sections
148/149/325/302/34 of the IPC.
4. The case projected by the petitioners is that in connection with the Murajhar
PS Case No.223/2021 registered under Sections 147/302/325 of the IPC, the Final
Form was submitted where the name of the two petitioners were put in the column of
"not sent up". As such, the petitioners were under the bona fide impression that the
connected proceedings had come to an end. However, it appears that further
investigation was sought for by the prosecution and in the further investigation, it
appears that charges have been framed against the two petitioners and they have
been termed as absconders which fact was not within the knowledge of the
petitioners. In the meantime, the matter had proceeded before the learned CJM, who
had issued NBWA against the petitioners due to their absence. As stated above, in the
meantime, the matter has also been committed to the Court of the learned Sessions
Judge.
5. Shri Dutta, learned counsel for the petitioners has submitted that the
petitioners are ready and willing to appear in the trial. However, they apprehend that
in view of the NBWA, they may be arrested in the meantime. In support of his
submissions, Shri Dutta, learned counsel has placed reliance upon a decision of the
Hon'ble Supreme Court in the case of Aman Preet Singh Vs. CBI Through
Director, reported in 2021 SCC OnLine 941 wherein the Hon'ble Supreme Court in
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paragraphs 10 and 11 has held in the following manner:
"10. A reading of the aforesaid shows that it is the guiding principle for a
Magistrate while exercising powers under Section 170, Cr.P.C. which had been
set out. The Magistrate or the Court empowered to take cognizance or try the
accused has to accept the charge sheet forthwith and proceed in accordance
with the procedure laid down under Section 173, Cr.P.C. It has been rightly
observed that in such a case the Magistrate or the Court is required to
invariably issue a process of summons and not warrant of arrest. In case he
seeks to exercise the discretion of issuing warrants of arrest, he is required to
record the reasons as contemplated under Section 87, Cr.P.C. that the accused
has either been absconding or shall not obey the summons or has refused to
appear despite proof of due service of summons upon him. In fact the
observations in Sub-para (iii) above by the High Court are in the nature of
caution.
11. Insofar as the present case is concerned and the general principles under
Section 170 Cr.P.C, the most apposite observations are in sub-para (v) of the
High Court judgment in the context of an accused in a non-bailable offence
whose custody was not required during the period of investigation. In such a
scenario, it is appropriate that the accused is released on bail as the
circumstances of his having not been arrested during investigation or not being
produced in custody is itself sufficient to entitle him to be released on bail. The
rationale has been succinctly set out that if a person has been enlarged and
free for many years and has not even been arrested during investigation, to
suddenly direct his arrest and to be incarcerated merely because charge sheet
has been filed would be contrary to the governing principles for grant of bail.
We could not agree more with this."
6. Shri Gogoi, learned Addl. PP, however submits that no fault can be
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attributed to the learned CJM as the NBWA was issued since the petitioners were
absent.
7. After hearing the parties and on perusal of the materials on record, this
Court is of the opinion that though the NBWA has been issued against the petitioners,
the order does not reflect that any investigation was done as to whether any
endeavour was made to serve upon the petitioners. In any case, it being the case of
the petitioners that they are ready and willing to appear and face the trial, interest of
justice would require that the petitioners be given liberty to appear and face the trial
and to facilitate the same, some protection is required to be given.
8. Accordingly, this petition is closed by directing that the petitioners shall
appear before the leaned CJM, Hojai within 15 days from today and pray for bail. It is
further directed that till such appearance, the NBWA issued in respect of the
petitioners shall not be given effect to.
9. It is made clear that since the committal order would not cover the
petitioners, their appearance, at present, would be before the learned CJM, Hojai.
10. Needless to say, the learned CJM while considering the prayer for bail of the
petitioners shall pass necessary order(s) strictly in accordance with the law.
11. The criminal petition stands disposed of.
JUDGE
Comparing Assistant
