Md. Sabir Ali vs The State Of Assam And Anr
2022 Latest Caselaw 4348 Gua

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GAHC010225302022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Pet./1116/2022

            MD. SABIR ALI
            S/O LATE ABDUL KARIM @ KARIM ALI
            R/O VILL- BILPATHAR (NAUJAN)
            P.S. SARUPATHAR
            DIST. GOLAGHAT, ASSAM
            PRESENTLY RESIDING AT VILL- NO. 2 KOIRIGAON
            P.S. SARUPATHAR
            DIST. GOLAGHAT, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY THE PP, ASSAM

            2:MD. HANIF ALI
             S/O LATE ABDUL RAHMAN
            R/O VILL- SHANTIGAON
            BUDHURA TILA
            P.S. KHATKHATI
            DIST. KARBI ANGLONG
            ASSAM
            PIN CODE- 78248

Advocate for the Petitioner   : MR. U K BARMAN

Advocate for the Respondent : PP, ASSAM
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                                  BEFORE
                     HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                        ORDER

Date : 09-11-2022

Heard Mr. H Ali, learned counsel for the petitioner and Ms. SH Bora, learned Additional PP, appearing for the State respondent.

This application under Section 482 Cr.P.C. is preferred by Md. Sabir Ali for quashing the Non Bailable Warrant of Arrest (NBWA) issued against him by the Court of the learned Special Judge, Karbi Anglong in Diphu, in POCSO Case No.23/2020, under section 366 IPC read with section 4 of the POCSO Act.

Mr. Ali, the learned counsel for the applicant referring to the order dated 05.06.2022 submits that the learned court below at the very first instance has issued NBWA against the petitioner and that he is ready to participate in the trial, and therefore, it is contended to set aside the impugned order. Mr. Ali, learned counsel for the petitioner referred one judgment of the Supreme Court rendered in the case of Aman Preet Singh Vs. CBI through Director reported in 2021 STPL 10489 SC, in support of his submissions.

On the other hand, Ms. SH Bora, learned Addl. PP submits that the applicant may be directed to appear before the learned court below on the date fixed.

It is to be mentioned here that in the case of Vikash Vs. State of Rajasthan in Criminal Appeal No.1190/2013 arising out of SLP (Crl) No.6081/2013, Hon'ble Supreme Court has held that the issuance of non- bailable warrant at the first instance without using the other tools of summons and bailable warrant to secure the attendance of such a person would impair the personal liberty guaranteed to every citizen under the Page No.# 3/4

Constitution. This position is settled in the case of Inder Mohan Goswami Vs. State of Uttarakhand reported in (2007) 12 SCC 1 and in the case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Anr; reported in (2012) 9 SCC 791, wherein it has been observed that personal liberty and the interest of the State Civilized countries is the most precious of all the human rights. Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. The issuance of non-bailable warrant involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, this demands that the courts have to be extremely careful before issuing non- bailable warrants.

Here in this case the learned court below without availing the other means to procure the attendance of the applicant, had directly issued non bailable warrant of arrest which appears to be not in consonance with the guidelines issued by the hon'ble Supreme Court in the case of Indra Mohan Goswami (supra) and in the other case law discussed above and also not in consonance with the law laid down by the Hon'ble Supreme Court in the case referred by Mr. R Ali, learned counsel for the petitioner. When, the impugned order, dated 05.06.2022, is examined the light of the ratio laid down in the above mentioned case laws, to the considered opinion of this Court, the same failed to withstand the test of legality propriety and correctness, and accordingly, the same stands sets aside and quashed.

The applicant is directed to appear before the learned court below on 30.11.2022, and to apply for regular bail and in the event of filing such an application, the learned court below shall consider the same in accordance with law.

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In terms with the above, this criminal petition stands disposed of at this motion stage itself.

JUDGE

Comparing Assistant