Gauhati High Court
The State Of Assam vs Ashik Ali on 13 June, 2025
Author: Sk Medhi
Bench: Sanjay Kumar Medhi
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GAHC010107792010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./203/2010
THE STATE OF ASSAM
VERSUS
ASHIK ALI
S/O ANAR ALI, R/O VILL. ROUTHGRAM, P.O. KALIGANJ BAZAR, P.S.
KALIANJ, DIST. KARIMGANJ, ASSAM.
2:BOLAI MIA @ MONAI MIA
S/O LATE INTAZ ALI
VILL. KALINAGAR
DIST. KARIMGANJ
3:MOIN UDDIN
S/O KUTI MUSTAKIN ALI
VILL. KALINAGAR PART-V
KATAKHAL
P.S. ALGAPUR
DIST. HAILAKANDI
4:ABDUL MALIK
S/O LT. JAMIR ALI
VILL. ALANGJURI
P.O. SILCHAR ROAD
SARISHA
P.S. and DIST. KARIMGANJ
Advocate for the Petitioner : PP, ASSAM,
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Advocate for the Respondent : MR.M K HUSSAIN, MR. B M CHOUDHURY, AMICUS
CURIAE(R-3),MR.A M MAZUMDAR,MR.A CHOUDHURY,MR.F K R AHMED
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE KAKHETO SEMA
For the Appellant : Ms. B Bhuyan, Addl. PP, GHC;
Shri Debojyoti Roy, PP, Karimganj
(Appearing online).
For the Respondents: Shri A Choudhury, Advocate;
Shri BM Choudhury, Amicus Curiae.
Date of Hearing : 13.06.2025.
Date of Judgment : 13.06.2025.
Judgment & Order
SK Medhi, J.
In this appeal, the judgment was pronounced on 13.02.2025 whereby, the
appeal preferred by the State against an order of acquittal has been set aside and the
respondents have been convicted under Section 396 of the Indian Penal Code (IPC).
The matter was thereafter directed to be listed for sentence hearing.
2. The matter was thereafter taken on a number of occasions and had to be
adjourned due to non-appearance of the respondents. In this connection, this Court
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had issued NBWA and finally, except the respondent no. 1-Ashik Ali and respondent
no. 2-Bolai Mia @ Monai Mia, the other respondents, namely, Moin Uddin and Abdul
Malik were produced after being apprehended by the police and are presently in
custody. As regards the respondent no.1-Ashik Ali, he was found to be absconding and
as regards respondent no. 2-Bolai Mia @ Monai Mia, he was stated to have expired
and a photo copy of the death certificate was produced. This Court had passed order
on 05.05.2025 directing authentication of the death certificate as certain discrepancies
were pointed out by the learned APP. The verification has, accordingly been done by
the concerned police of the Karimganj Police Station and report of the same has been
forwarded through the office of the Addl. Sessions Judge, FTC, Sribhumi, vide
communication dated 26.05.2025. The same has been perused and it appears that the
death certificate dated 30.01.2018, indeed pertains to respondent no.2-Bolai Mia @
Monai Mia.
3. We have heard Shri Ms. B Bhuyan, learned Addl. PP, Assam and Shri Debojyoti
Roy, learned PP, Assam. Also heard Shri A Choudhury, learned counsel for the
respondents as well as Shri BM Choudhury, learned Amicus Curiae.
4. Shri A Choudhury, learned counsel for the respondents has submitted that the
criminal trial has started in the year 1998 and the order of acquittal was passed in the
year 2008. Thereafter, the instant appeal has been filed in which, the judgment has
been delivered on 13.02.2025. He submits that sufficient time has elapsed and
therefore, minimum sentence should be imposed. He has also submitted that the
respondents, by this time, have become sufficiently aged and the age factor would
also be a relevant.
5. On the other hand, both Ms. Bhuyan, learned APP, Gauhati High Court and Shri
Debojyoti Roy, learned PP have submitted that the offence involved is a grave one
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which was committed in a dastardly manner and therefore, the maximum penalty be
awarded.
6. Before going to the aforesaid aspect, this Court is required to deal with the
situation where the respondent no. 1 is absconding. It may, however be mentioned
that all the respondents were represented by the same learned counsel, who has been
heard.
7. Section 353 of the Cr.PC pertains to Judgment, which reads as follows:
"353. Judgment.
(1) The judgment in every trial in any Criminal Court of original jurisdiction
shall be pronounced in open Court by the presiding officer immediately after
the termination of the trial or at some subsequent time of which notice shall
be given to the parties or their pleaders, -
(a) by delivering the whole of the judgment; or
(b)by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the
substance of the judgment in a language which is understood by the
accused or his pleader.
(2) Where the judgment is delivered under clause (a) of sub-section (1), the
presiding officer shall cause it to be taken down in short-hand, sign the
transcript and every page thereof as soon as it is made ready, and write on it
the date of the delivery of the judgment in open Court.
(3) Where the judgment or the operative part thereof is read out under
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clause (b) or clause (c) of sub-section (1), as the case may be, it shall be
dated and signed by the presiding officer in open Court, and if it is not
written with his own hand, every page of the judgment shall be signed by
him.
(4) Where the judgment is pronounced in the manner specified in clause (c)
of sub-section (1), the whole judgment or a copy thereof shall be
immediately made available for the perusal of the parties or their pleaders
free of cost.
(5) If the accused is in custody, he shall be brought up to hear the judgment
pronounced.
(6) If the accused is not in custody, he shall be required by the Court to
attend to hear the judgment pronounced, except where his personal
attendance during the trial has been dispensed with and the sentence is one
of fine only or he is acquitted :
Provided that, where there are more accused than one, and one or more
of them do not attend the Court on the date on which the judgment is to
be pronounced, the presiding officer may, in order to avoid undue delay
in the disposal of the case, pronounce the judgment notwithstanding
their absence.
(7) No judgment delivered by any criminal court shall be deemed to be
invalid by reason only of the absence of any party or his pleader on the day
or from the place notified for the delivery thereof, or of any omission to
serve, or defect in serving, on the parties or their pleaders, or any of them,
the notice of such day and place.
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(8) Nothing in this shall be construed to limit in any way the extent of the
provisions of Section 465."
8. It is clear that Section 353(6) of the IPC permits a Court to pronounce a
sentence against the convicts who are present at the time of sentencing and defer it
with regard to those who are absent. This is not the general rule, but an exception
exercised at the discretion of the Court to prevent undue delay in the judicial process.
Though the general rule mandates the presence of the accused during the
pronouncement of the judgment under Section 353(5), and exception for multiple
accused is carved out by the proviso to Section 353(6). The purpose is to take care of
situations where the absence of one or more accused could hold up the entire case. If
some convicts are absent on the day of sentencing, the Court can proceed to
pronounce the judgment and sentence for the convicts who are present. This ensures
that the convicts who have diligently attended the trial are not prejudiced by the
deliberate absence of their co-convicts.
9. The Hon'ble Supreme Court has consistently upheld the principle that judicial
proceedings cannot be stalled indefinitely because an accused has chosen to abscond
and in this regard, the case of State of Punjab vs. Jagdev Singh Talwandi , reported
in (1984) 1 SCC 596 is a landmark judgment. In this case, one of the accused had
absconded and fled the country after the conclusion of the trial but before the
judgment could be delivered. The High Court went ahead and pronounced the
judgment, convicting the accused who were present and also the absconding accused.
The Hon'ble Supreme Court upheld the High Court's decision and held that the High
Court was justified in pronouncing the judgment against all the accused, including the
one who was absconding to avoid inordinate delay. The Court emphasized that a well-
settled principle of criminal jurisprudence is that the judgment can be pronounced in
the absence of the accused if he deliberately absents himself.
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10. In this connection, it may also be relevant to refer to the case of Hussain &
Anr. Vs. Union of India, reported in (2017) 5 SCC 702. Though this case primarily
dealt with the fundamental right to a speedy trial, the Supreme Court made significant
observations about the problem of absconding accused delaying the trial process.
11. From the aforesaid provision of law and the interpretation and case laws of the
Hon'ble Supreme Court, it is settled that the Court has the discretion to pronounce the
sentence against the convicts present to avoid undue delay, while taking coercive
measures like issuing an arrest warrant to secure the presence of the absentee
convicts for their sentencing at a later date. Once the absentee convicts are arrested
and produced before the court, the sentence will then be formally pronounced against
them.
12. The offence in question under which the conviction is made is Section 396 of
the IPC. The said Section reads as follows:
"396. Dacoity with murder.--
If any one of five or more persons, who are conjointly committing dacoity,
commits murder in so committing dacoity, every one of those persons shall
be punished with death, or imprisonment for life, or rigorous imprisonment
for a term which may extend to ten years, and shall also be liable to fine."
13. From the aforesaid section, the following penalties are prescribed:
i) Death or
ii) Imprisonment for life or
iii) Rigorous imprisonment for a term which may extend to ten years.
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That apart, there is also a prescription for payment of fine.
14. Considering the facts and circumstances, including the aspect that the trial had
started in the year 1998 and the acquittal order itself, which has been interfered with,
was passed in the year 2008 and also the age of the convicts, this Court is of the
considered opinion that punishment to undergo Rigorous Imprisonment for a term of
10 years and imposition of fine of Rs. 10,000/- (Ten thousand) only each and in
default, further RI for 2 months would be justified. It is needless to mention that the
period in which the convicts were in custody be set off. The aforesaid sentence has
been passed for respondents-convicts, Moin Uddin and Abdul Malik. So far as the
convict-Ashik Ali is concerned, the NBWA which was issued earlier shall remain
operative. The learned Trial Court is also directed to initiate Proclamation and
Attachment proceedings if the said convict is not able to be apprehended within a
period of 2 months from today.
15. Send back the TCRs.
JUDGE JUDGE
Comparing Assistant
