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2006 DIGILAW 761 (GAU)

Siraj Ali v. State of Assam

2006-08-16

I.A.ANSARI

body2006
ORDER I.A. Ansari, J. 1. The facts, giving rise to the present revision, may, in brief, be noted as follows: (i) In G.R. Case No. 444/99, the police submitted charge-sheet under Sections 147,148,149,436,302,201, IPC against persons named as accused in the said charge-sheet. By order, dated 1.6.2004, the learned Chief Judicial Magistrate made over the case to learned Sub-Divisional Judicial Magistrate, Mangaldoi, for disposal and, on receipt of the record, an order was passed, on 4.6.2004, by the learned SDJM directing issuance of warrant of arrest against the accused persons. By order, dated 4.2.2005, Proclamation and Attachment were directed to be issued against the accused. On the strength of the warrant of arrest, the police arrested one of the accused persons, namely, Rustom Ali, and, on his production in the Court of the learned SDJM, an order was passed, on 22.12.2005, remanding the said accused to judicial custody and the prayer for bail made by the said accused was also turned down. (ii) The present Petitioners filed Criminal Petition No. 18/2006 seeking to get set aside the order, dated 4.6.2004, aforementioned, whereby warrants of arrest had been directed to be issued against all of them. By the Criminal Petition No. 18/2006, the accused also prayed that in the vent of their appearance in the Court of the learned SDJM, they maybe directed to be released on bail. By order, dated 24.3.2006, Criminal Petition No. 18/2006 was disposed of with direction to the learned SDJM to verify the records and ascertain if the contention of the accused-Petitioners that they were not really aware of the pendency of the case against them is correct or not. It was also directed by the order, dated 24.2.2006, aforementioned that in the event of the accused-Petitioners making application for grant of bail, the same shall be considered by the learned SDJM in accordance with the provisions of law. It was further directed by the High Court by its order, dated 24.3.2006, aforementioned that the warrants of arrest, issued against the Petitioners, shall not be executed for a period of seven days, but in the event of the failure of the accused-Petitioners to appear in the Court within the said period of seven days, warrants of arrest shall be executed. Thereafter, a miscellaneous application for necessary modification of the order, dated 24.3.2006, was filed by the Petitioners. Thereafter, a miscellaneous application for necessary modification of the order, dated 24.3.2006, was filed by the Petitioners. This miscellaneous application gave rise to Miscellaneous Case No. 111/2006; the case of the Petitioners being, inter alia, that in compliance with the directions contained in the order, dated 24.3.2006, the Petitioners, having obtained a certified copy of the said order, appeared, on 1.4.2006, in the Court of the learned SDJM, and applied for bail, but the learned SDJM refused to entertain the bail application by observing that the order, dated 24.3.2006, passed by the High Court, in Criminal Petition No. 18/2006, was time barred. The Petitioners, therefore, in Miscellaneous Case No. 111/2006, sought for extension of time for their appearance in the learned court below, whereupon an order was passed, on 12.4.2006, in Miscellaneous Case No. 111/2006, whereby the High Court extended the time limit to 18.4.2006 by directing the Petitioner to appear in the Court of the learned SDJM within the extended period of 18.4.2006. (iii) The Petitioners, thereafter, came, once again, to the High Court with an application made under Section 482, Code of Criminal Procedure and this application has given rise to the present criminal petition. In this criminal petition, the petitioner’s case is, in brief, thus : Following the extension of time limit to 18.4.2006, the Petitioners appeared, on 17.4.2006, in the Court of the learned SDJM and filed an application wherein they prayed, inter alia, that their appearance in the Court be recorded, they be allowed to go on bail and the warrants of arrest issued against them be recalled. However, as the learned SDJM was not present, the Judicial Magistrate, who came in seisin of the petition, directed that the application be put up before the learned SDJM on 18.4.2006. On 18.4.2006, when the Petitioners appeared in the Court of the learned SDJM, their application was not entertained and the learned SDJM refused to pass any order in the said petition. (iv) When the present criminal petition was moved, it was submitted, on behalf of the Petitioners, that the learned SDJM did not entertain their application on 18.4.2006 till 4 p.m. and forced the Petitioners' counsel not to press the petition and, eventually, the Petitioners' counsel, under compulsion, wrote on the petition that the petition was not pressed. (iv) When the present criminal petition was moved, it was submitted, on behalf of the Petitioners, that the learned SDJM did not entertain their application on 18.4.2006 till 4 p.m. and forced the Petitioners' counsel not to press the petition and, eventually, the Petitioners' counsel, under compulsion, wrote on the petition that the petition was not pressed. On the submissions, so made, the High Court passed an order, on 30.6.2006, observing, inter alia, that the allegations made by the Petitioners were serious in nature and hence, the Petitioners shall file an additional affidavit in support of their statements made before the Court and the Registry shall call for a report from the learned SDJM in this regard. Following the directions, so given, on 30.6.2006, an additional affidavit was filed by the Petitioners and a report was also received from the learned SDJM. On 21.7.2006, on perusal of the materials on record, this Court, having found the report of the learned SDJM evasive in nature, passed an order directing, inter alia, the learned SDJM to submit a detailed report in the matter. (v) When the matter came up, on 27.7.2006, the detailed report, submitted by the learned SDJM, was perused and this Court found that the report of the learned SDJM was still inadequate and did not throw sufficient light in the matter; hence, further information were directed to be furnished by the learned SDJM. Thereafter, when the matter came up on 7.8.2006 and this Court noticed that despite repeated directions, the report submitted by the learned SDJM was evasive, this Court directed the learned Chief Judicial Magistrate, Darrang, Mangaldoi, to make an enquiry into the matter and submit a comprehensive report, in this regard, so as to enable the Court to pass appropriate order(s) in the matter. Pursuant to the directions so given, the learned Chief Judicial Magistrate, Darrang, Mangaldoi, has submitted his report, which reflects that the learned Chief Judicial Magistrate does not entirely agree with the learned SDJM that the Petitioners had not pressed their application for bail on 18.4.2006. This report also indicates that the learned Chief Judicial Magistrate, having found serious lapses on the part of the Bench Assistant too, has suspended her pending drawing of disciplinary proceeding against her. 2. It is the backdrop of the above facts and circumstances that the present criminal petition needs to be disposed of. 3. I have heard Mr. This report also indicates that the learned Chief Judicial Magistrate, having found serious lapses on the part of the Bench Assistant too, has suspended her pending drawing of disciplinary proceeding against her. 2. It is the backdrop of the above facts and circumstances that the present criminal petition needs to be disposed of. 3. I have heard Mr. L. Rahman, learned Counsel for the accused-Petitioners, and Mr. B.S. Sinha, learned Addl. Public Prosecutor, Assam. 4. Since neither it is possible nor desirable that this Court, in this criminal petition, determines the question as to whether the Petitioners had really appeared, in the Court of the learned SDJM, on 18.4.2006, or not, this criminal petition needs to be disposed of on merit. Hence, without giving a clear finding as to whether or not the report, submitted by the learned SDJM, is true or not, let me, now, deal with the criminal petition on merit and this brings me to the order, dated 4.6.2004, whereby, I notice, warrants of arrest were directed to be issued against the accused-Petitioners. In this order, the learned SDJM has assigned no reason whatsoever for directing issuance of the warrants of arrest against the Petitioners. This order merely states that the warrants of arrest be issued against the absconding accused. It may, at this stage, be pointed out that issue of warrant of airest is a momentous order, for, such an order affects the liberty of the person against whom the warrant is issued and, hence, no direction to issue warrant of arrest can be passed mechanically and unless the Magistrate is satisfied, on perusal of the relevant materials in the case diary, that the accused had really absconded as reflected in the charge-sheet. No such satisfaction has been recorded by the learned SDJM in the order, dated 4.6.2006, aforementioned. In fact, the order, passed on 4.6.2004, and the orders, passed subsequent thereto, clearly show that the learned SDJM did not even peruse the case diary before directing issuance of warrants of arrest against the accused-Petitioners. Similarly, the learned SDJM has directed issuance of Proclamation and Attachment against the accused-Petitioners by order, dated 4.2.2005. No reason has, however, been assigned as to why Proclamation and Attachment were directed to be issued against the accused-Petitioners. Similarly, the learned SDJM has directed issuance of Proclamation and Attachment against the accused-Petitioners by order, dated 4.2.2005. No reason has, however, been assigned as to why Proclamation and Attachment were directed to be issued against the accused-Petitioners. One has to bear in mind that there lies a difference between an investigating agency treating an accused as absconder and a Magistrate coming to a clear finding as to whether the accused has really absconded or not. Unless such a clear finding is reached by the Magistrate, the accused cannot, and must not, be labelled as absconder by the Magistrate. 5. Coupled with the above, what can also not be ignored is that the learned SDJM examined the enquiry officer on 20.3.2005. Having examined the enquiry officer, the learned SDJM directed the case to be filed. No satisfaction was recorded by the learned SDJM in the order, dated 20.3.2005, that the accused had absconded. Far from this, what the learned SDJM has noted, in the order, dated 20.3.2005, aforementioned is that the accused have been shown as absconder in the charge-sheet itself and, hence, the case is disposed of accordingly till appearance of the accused. From the perusal of the various orders passed in the case, it becomes abundantly clear that the learned SDJM had, at no stage, expressed, her satisfaction that the accused had absconded. This apart, and as already indicated hereinbefore, neither the case diary was ever perused by the learned SDJM nor did the learned SDJM perused even the reports, submitted by the police, to the effect that the accused had absconded. In short, thus, the orders aforementioned directing issuance of warrants of arrest and/or Proclamation and Attachment suffer from complete non-application of judicial mind. 6. Situated, thus, this Court is of the view that in the peculiar" facts and circumstances of the present case, interest of justice requires that the case be withdrawn, in exercise of this Court's powers under Section 482, Code of Criminal Procedure, from the file of the learned SDJM and be made over to the learned Chief Judicial Magistrate, Darrang, for disposal. 7. Considering, therefore, the matter in its entirety and in the interest of justice, G.R. Case No. 444/99 is hereby transferred to the learned Chief Judicial Magistrate, Darrang. 7. Considering, therefore, the matter in its entirety and in the interest of justice, G.R. Case No. 444/99 is hereby transferred to the learned Chief Judicial Magistrate, Darrang. The accused-Petitioners are hereby directed to appear in the Court of the learned Chief Judicial Magistrate, Darrang, Mangaldoi, on or before 23.8.2006 and if, on their appearance in the learned Court below, the Petitioners apply for bail, they shall be allowed to go on bail of Rs. 10,000 each with two local sureties, each of the like amount, subject to the satisfaction of the learned Court below. This direction for bail is further subject to the condition that the Petitioners shall keep appearing in the learned court below as may, hereafter, be directed by it. 8. Before parting with the present criminal petition, it needs to be pointed out that when an accused makes an application for bail in a Court of a Judicial Magistrate, the same amounts to the accused having surrendered to the custody of the Court and, in such a situation, the Judicial Magistrate cannot merely direct such an application to be put up on a particular date or before a particular Magistrate for necessary order, for, on such application having been made, the accused cannot be allowed to leave the court without any appropriate order passed in the case. It is equally important to remember that when such an application for bail is made, the Bench Assistant has no discretionary power to put up or not to put up such an application before the Magistrate concerned, for, it is the duty of the Bench Assistant to put up such an application to the Magistrate and no counsel can be allowed to make any endorsement or write anything, on any petition or application pending before the Court, without direction of the Court. In fact, no counsel should be allowed to even peruse the record except as provided in the Criminal Rules and Orders framed in this regard. 9. Coupled with the above, it is the Judicial Magistrate, who must have control on the proceedings of every case pending in his Court. In the present case, I am shocked to notice that on receipt of the record of G.R. Case No. 444/99, the order directing issuance of warrants of arrest was not even written by the learned SDJM, but was written by the Bench Assistant. In the present case, I am shocked to notice that on receipt of the record of G.R. Case No. 444/99, the order directing issuance of warrants of arrest was not even written by the learned SDJM, but was written by the Bench Assistant. This apart the fact that the order, dated 4.6.2004, as already indicated above; gives no reason as to why the warrants of arrest had been directed to be issued or passed, is re-elective of mechanical exercise of power by the learned SDJM. As a matter of fact, and amazingly enough, even the order directing issuance of Proclamation and Attachment was written, on 4.2.2005, by the Bench Assistant and not by the learned SDJM contrary to what the Criminal Rules and Orders demand, In fact, between 4.6.2004 and 20.3.2005, not a single order was passed by the learned SDJM. It is only, when the enquiry officers were examined, on 20.3.2005, that the learned SDJM passed the order herself, though even this order, as already discussed above, is not in accordance with law. Even when one of the accused, namely, Rustom Ali was arrested and produced before the learned SDJM on 22.12.2005, the order directing his remand to the judicial custody was written by the Bench Assistant and it is only when the order, on the petition for bail made by the said accused was required to be passed on 22.12.2005, that the learned SDJM had written the order, rejecting the prayer for bail. Thus, in a period of about two years, the learned SDJM has written barely two orders herself These facts clearly show that the learned SDJM, as a Judicial Officer, never had control on the proceedings of the cases pending in her Court. 10. It is also worth mentioning that on noticing, on 21.7.2006, that the report of the learned SDJM was evasive in nature, this Court specifically observed that the learned SDJM had not disclosed as to what disciplinary action had been taken by her for the omission, on the part of her staff, to put up the petition, in question, before her on 18.4.2006, for, the Petitioners were, on 18.4.2006, too, in the custody of the Court, when they allegedly appeared for not pressing their application for bail. In the report submitted to this Court pursuant to the direction so given on 21.7.2006, the learned SDJM remained completely silent as to what action had been taken by her against her Bench Assistant and/or staff for not placing the petition before her on 18.4.2006. Even after the query was raised by this Court, on 21.7.2006, from the learned SDJM as to what disciplinary action had been taken by her against her Bench Assistant or staff, the learned SDJM's reports, dated 25.7.2006 as well as dated 5.8.2006 remained silent on this vital aspect. This silence is ominous, for, the order sheet, dated 15.7.2006, shows that the learned SDJM directed her Bench Assistant to submit her explanation giving her time till 24.7.2006. What cannot be ignored here is that as many as nine days were given to the Bench Assistant to submit her explanation and her explanation is shown to have been obtained on 24.7.2006, that is, the date on which the copy of the order, dated 21.7.2006, passed by this Court, was, in fact, received and, indeed, "seen" by the learned SDJM. 11. Imperative it is to point out here that since the explanation was officially called for, it ought to have been formally routed through the office concerned so that Memo Numbers could have been assigned to the copy of the order where under the explanation was sought for and/or received. That apart, there is no endorsement on the body of the order, dated 15.7.2006, by the Bench Assistant to indicate that the direction in the order, dated 15.7.2006, passed in G.R. Case No. 444/99 was ever formally communicated to the Bench Assistant. 12. What emerges as the prominently disturbing features are, thus: The order, dated 21.7.2006, though received and "seen" by the learned SDJM, on 24.7.2006, was shown to have been perused on 25.7.2006. No explanation from the Bench Assistant was formally obtained. There is no endorsement on the order, dated 15.7.2006, to show that the Bench Assistant was even shown the directions contained in the order, dated 15.7.2006, asking her to submit her explanation As many as nine days were given to the Bench Assistant to offer explanation on such a serious and urgent issue, the date of the explanation being receivable on 24.7.2006, which coincided with the date on which the order, dated 21.7.2006, was received by the learned SDJM. No explanation was formally routed through the office and, therefore, no Memo Number was assigned for either directing the Bench Assistant to adduce explanation or for obtaining her explanation. No recommendation or suggestion was made to the learned Chief Judicial Magistrate to take action against the Bench Assistant. In fact, no report, as such, against the Bench Assistant was submitted by the learned SDJM to the learned Chief Judicial Magistrate against the conduct and lapses on the part of her Bench Assistant. There are over-writings with regard to, amongst others, the date of the order, 24.7.2006. The question, therefore, is as to whether the record has been faithfully maintained the learned SDJM and whether the orders, which are shown to have been passed on 15.7.2006, 24.7.2006 and 25.7.2006, were really passed on the dates aforementioned. The matter, therefore, needs careful and thorough examination on the administrative side. 13. Considering, therefore, the matter in its entirety and in the interest of justice, the Registry is hereby directed that a copy of this order along with the copies of all the relevant orders passed by the High Court, in Criminal Petition Nos. 18/2006 and 116/2006, be laid before the Hon'ble Chief Justice for consideration if the matter needs to be dealt with on the administrative side by the High Court. 14. With the above observations and directions, this criminal petition shall stand disposed of. 15. Send back the LCRs with a copy of this order.