Gauhati High Court
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Page No.# 1/4
GAHC010190822025
2025:GAU-AS:11547
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1047/2025
ASRAFUL ISLAM
S/O AMZAD ALI
VILL- EKLA SALBARI, P.S. LAKHIPUR
DIST. GOALPARA, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. J AHMED, MS J YESMIN,MR Z RAHMAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 28-08-2025
Heard Mr. J. Ahmed, the learned counsel for the petitioner. Also heard Mr.
B. Sharma, the learned Additional Public Prosecutor appearing on behalf of
State respondent.
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2. This is an application u/s 528 of Bharatiya Nagarik Suraksha Sanhita, 2023
for setting aside and quashing the impugned orders dated 05.03.2025,
10.04.2025 & 17.07.2025 issuing NBWA & P/A and declaring the accused
petitioner as proclaimed absconder passed in Session Case No. 15/2021 (Split
up record) by the learned Sessions Judge, Goalpara, Assam.
3. It is submitted by Mr. Ahmed that the present accused/petitioner is
innocent. He has not committed any such offence as alleged in the FIR.
However, it is a fact that the case was charge-sheeted against the present
accused/petitioner along with one co-accused person and he was appearing
before the Court. But, thereafter he could not make any communication with his
engaged counsel for which he remained unrepresented and considering this
aspect of the case NBWA was issued against him and the case is also split up
against him by order dated 14.06.2022 and thereafter the case of the co-
accused was proceeded and finally vide order dated 09.02.2023 the co-accused
was acquitted. Subsequently the case again reopened and NBWA was issued
against the present petitioner and he got arrested in connection with this case
on the strength of NBWA and after a considerable period the accused was also
allowed to go on bail by the learned Assistant Sessions Judge, Goalpara.
Thereafter the case proceeded accordingly and finally the case was fixed for
argument on 03.07.2023 and then again on 24.07.2023 the case was fixed for
argument and subsequently on 08.08.2023 the argument was heard and case
was fixed for a judgment on 22.08.2023. But, on 22.08.2023 due to strike of the
staff the record was put up on 24.08.2023 and thereafter the case was again
fixed for judgment but the case was fixed for judgment but he did not appear
before the learned Trial Court below with an impression that as the co-accused
had already got acquitted for the same set of evidence, he will also get an order
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of acquittal and accordingly he went for his work at Haflong. But, considering
his absence, the learned Trial Court below again issued NBWA against him and
subsequently examining the case of the present accused/petitioner, the
Execution Officer on 17.05.2025 declared him as an absconder.
4. Mr. Ahmed further submitted that there is no willful negligence on the part
of the accused/petitioner and it was only for his wrong impression he did not
appear before the learned Trial Court below on the day of judgment. However,
he is ready and willing to appear before the learned Trial Court below and to
face the trial and also to get the consequence of the judgment. Accordingly, he
submitted that he may be protected and the order dated 17.07.2025 may be set
aside and quashed.
5. Mr. Sharma, the learned Additional Public Prosecutor submitted in this
regard that though the annexures filed along with the petition, especially all the
Order Sheets it reveals prima facie that the accused/petitioner was not only
absconded at the time of his trial but, subsequently at the time of judgment
also he was absconding and finding no alternative the Court had to issue
proclamation against the petitioner and after examining by the Execution Officer
the case against the present petitioner has to be filed declaring him as an
absconder. In such a situation, the petitioner is not entitled to get any relief of
interim protection.
6. Hearing the submissions made by learned counsel for both sides, I have
also perused the case record and the annexures filed along with the petition and
it is seen that the petitioner is absconding since the beginning of the trial for
which has to split up this case with the other co-accused person and in spite of
issuing NBWA, the petitioner remained absconded and for that the learned Trial
Court below has to issue BWA against the present petitioner. Further that on
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17.07.2025 the Execution Officer by examining the case declared the petitioner
as a proclaimed offender and the case was filed against the present petitioner.
Thus, it is seen that even at the stage of judgment the Court had to take all
endeavours to procure the attendance of the present petitioner and finally it
declared him as an absconder. So, considering the overall circumstances of this
case and conduct of the petitioner, I do not find at all a fit case for any interim
protection against the preset petitioner. However, the petitioner is at liberty to
appear before the learned Trial Court below with an appropriate application for
bail, which may be considered in accordance with law.
7. With the above observations, the criminal petition stands disposed of.
JUDGE
Comparing Assistant
