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2011 DIGILAW 714 (GAU)

Pallabi Kakoti v. State of Assam

2011-08-26

ANIMA HAZARIKA

body2011
JUDGMENT Anima Hazarika, J. 1. Heard Mr. T.J. Mahanta, learned counsel appearing for the petitioner. Also heard Ms. B. Saikia, learned Addl. Public Prosecutor, Assam. The challenge made in this petition is to the order dated 12.7.2011 passed by the learned Sub Divisional Judicial Magistrate (S) ('SDM' for short), North Lakhimpur in GR Case No. 382/2010 under Sections 406/ 420, IPC arising out of North Lakhimpur PS Case No. 174/2010. The petitioner is a charge sheeted accused in the aforesaid case. 2. It is submitted by the learned counsel for the petitioner that coming to know about the registration of the PS case, she approached this Court by filing a bail application under Section 438 Cr. PC being registered and numbered as BA No. 2210/2010 and vide order dated 21.5.2010 this Court granted interim bail to the petitioner, which was subsequently made absolute vide order dated 16.6.2010. After obtaining the certified copies of the aforesaid orders, the petitioner had personally appeared before the Investigating Officer ('I/O' for short) and handed over the same to the I/O. Police did not record her statement as the matter between the informant and the petitioner was compromised by then. But surprisingly, after completion of the investigation of the North Lakhimpur PS Case No. 174/2010, police submitted charge sheet showing the petitioner as absconder. On the other hand, while submitting the charge sheet the police had also enclosed therewith the copies of the bail orders granted by this Court in favour of the petitioner. After receiving the charge sheet, the learned Chief Judicial Magistrate (L) ('CJM' for short) North Lakhimpur vide order dated 11.7.2011 transferred the case to the Court of learned SDJM (S) North Lakhimpur for disposal. While doing so, the learned CJM (L), North Lakhimpur in the order dated 11.7.2011 showed the accused petitioner as absconder and accordingly, the learned SDJM vide order dated 12.7.2011 issued Non Bailable Warrant of Arrest ('NBWA' for short) against the petitioner fixing 12.8.2011 for appearance. It is the case of the petitioner that the learned trial Court ought not to have issued the NBWA against the petitioner without complying the condition prescribed under Section 82 of the Cr. PC. 3. Mr. Mahanta, learned counsel for the petitioner has submitted that the petitioner has recently come to know about the issuance of the NBWA. It is the case of the petitioner that the learned trial Court ought not to have issued the NBWA against the petitioner without complying the condition prescribed under Section 82 of the Cr. PC. 3. Mr. Mahanta, learned counsel for the petitioner has submitted that the petitioner has recently come to know about the issuance of the NBWA. But, at no point of time, the petitioner has been served with the process of the Court, nor she was aware about the filing of the charge sheet against her. It has been further contended that the police had never visited her residence in search of her. The petitioner is very much present in her residential area alongwith her family members but the trial Court accepting the statements of the I/O has shown the petitioner as absconder and issued NBWA against her. 4. Upon hearing the learned counsel for the petitioner and on perusal of the materials available on record, it is seen that the impugned order referred to above was passed in non compliance of the provisions of law prescribed under Section 82 of the Cr. PC. 5. Mr. Mahanta further submits that the petitioner would appear before the learned trial Court on all the subsequent dates as fixed by the court. 6. The law regarding issuance of NBWA against an accused has been laid down by this Court in the case of Nazrul Islam v. State of Assam, 2008 (1) GLT 979, wherein this Court has held that while issuing P/A and NBWA certain conditions mentioned in Sections 82 and 83 of the Cr. PC are to be followed. 7. Further in a recent decision reported in 2011 (1) GLT 561, Kabir Ahmed (Md.) v. State of Assam, this Court has held that the police has no power to declare a person absconder. 8. The relevant portion of paragraph 3 of Kabir Ahmed (supra) is quoted hereunder: 3. The charge sheet was drawn on 31.5.10 being charge sheet No. 34/10 and the same was transferred to the learned Addl. CJM for necessary disposal on 12.7.10 when on the first day, the learned Addl. CJM passed an order directing to issue NBWA against the petitioner. In the aforesaid order it is not disclosed that the petitioner was absconder. Without following the procedure prescribed under Section82/83 Cr. CJM for necessary disposal on 12.7.10 when on the first day, the learned Addl. CJM passed an order directing to issue NBWA against the petitioner. In the aforesaid order it is not disclosed that the petitioner was absconder. Without following the procedure prescribed under Section82/83 Cr. PC, and in compliance of the provision of law as laid down in the case of Nazrul Islam v. State of Assam and ors., 2008 (1) GLT 979, it appears that the learned CJM hold to issue NBWA against the petitioner as the petitioner was described as absconder by the I.O. It is needless to reiterate that a police officer has no authority under the law to declare a person absconder. It is the judicial Court who can only pass an order as absconder but that does not reflect in the order. On 6.8.10 again such direction to issue NBWA was issued to the petitioner fixing the case on 31.8.10. 9. In the facts and circumstances of the case, it appears that the learned SDJM (S) without verifying the materials on record or following due process of law, mechanically issued NBWA against the petitioner on the very first instance. 10. In view of the above discussion and the law laid down in Nazrul Islam (supra) and Kabir Ahmed (supra) this criminal petition stands allowed and the impugned order dated 12.7.2011 passed by the learned SDJM (S) North Lakhimpur in GR Case No. 382/2010 is set aside and quashed. 11. Placing reliance upon a recent decision of the Hon'ble Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors., 2011 (1) SCC 694 , Mr. Mahanta has submitted that the petitioner may be allowed to remain on previous bail granted by this Court under Section 438, Cr. PC. 12. I have perused the aforesaid decision. In Siddharam (supra), the Supreme Court at paragraphs 94 and 108 has held as thus, 94. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the Court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the Court may either reject the bail application or confirm the initial order of granting bail. The Court would certainly be entitled to impose conditions for the grant of bail. After hearing the Public Prosecutor the Court may either reject the bail application or confirm the initial order of granting bail. The Court would certainly be entitled to impose conditions for the grant of bail. The Public Prosecutor or the complainant would be at liberty to move the same Court for cancellation or modifying the conditions of bail any time if liberty granted by the Court is misused. The bail granted by the Court should ordinarily be continued till the trial of the case. 108. The views expressed by this Court in all the abovereferred judgments have to be reviewed and once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the Court is cancelled by the Court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused. 13. In view of the law laid down by the Hon'ble Supreme Court in Siddharam (supra), the petitioner would be allowed to remain on previous bail granted by this Court vide orders dated 21.5.2010 and 16.6.2010, inasmuch as, on a specific query made by this Court, Mr. Mahanta has submitted that the interim bail dated 21.5.2010 which was subsequently made absolute vide order dated 16.6.2010 is still continuing as the petitioner has not misused the liberty of bail so granted to her. 14. Considering the facts and circumstances of the case, it is hereby directed that the petitioner shall positively appear before the learned trial Court on the next date fixed and the learned Court would proceed with the case in accordance with law. 15. The learned trial Court is directed to accept the bail bond to be furnished by the accused petitioner on her appearance before the Court. This criminal petition is accordingly stands allowed. Petition allowed.