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2014 DIGILAW 1044 (GAU)

Lalit Chandra Baruah v. State of Assam and Anr.

2014-12-05

P.K.SAIKIA

body2014
1. Heard Mr. B. Gogoi, learned counsel for the petitioner. Also heard Mr. B.J. Dutta, learned Addl. P.P. Assam, appearing for the State respondent. 2. This proceeding under section 482, Cr.PC has been filed by the petitioner, namely, Sri Lalit Chandra Baruah seeking quashment of the order dated 15.11.2014, passed by the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati in G.R. Case No.2350/2007. By the aforesaid order, the learned Chief Judicial Magistrate was pleased to order issuance of P&A against the petitioner herein. 3. As required by this court on 3.12.2014, the petitioner has brought on record the orders which were passed by the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati in G.R. Case No.2350/2007 from 10.10.2012 to 15.11.2014. 4. Before I proceed further, I find it necessary to reproduce the order which has been challenged in this proceeding. "15.11.2014. Accused persons are absent. Reports on P&A issued against accused Manjumoni Barthakur, Thakur Barthakur, Dayaram Yadav are returned without execution. Perused the reports. It appears that the E/O has not taken the signature of the witnesses in the proclamation and attachment warrant. So reports are not accepted. Issue fresh P&A against the above mentioned accused persons. P&A issued against accused Manjumoni Barthakur has returned without execution. So re-issue the same. Reports on P&A against accused Hemanta Bahadur Gayan has not returned. Issue reminder. Fix 9.1.2015 for appearance" 5. Two other orders having enormous bearing on the matter in dispute in this proceeding are also reproduced below : "12.6.2014. Accused are absent. NBWA are returned without execution. Seen the report, issue P/A against the accused. Fixing 25.8.2014 for appearance." "25.8.2014. Accused persons are absent. Reports from concerned PS. and court process are not received. So, issue reminder. Fix 15.11...2014 for appearance." 6. The learned counsel for the petitioner submits that the order which is challenge in this proceeding is profoundly illegal since such an order was rendered in total violation of law laid down in sections 82 and 83 of the Cr.PC which deal with the matter relating to proclamation and attachment of properties of the fugitive. In support of such contention, the learned counsel for the petitioner submits that the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati issued proclamation without first recording his satisfaction that the accused petitioner has absconded. 7. In support of such contention, the learned counsel for the petitioner submits that the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati issued proclamation without first recording his satisfaction that the accused petitioner has absconded. 7. Learned counsel further submits that the issuance of proclamation and attachment simultaneously is also not permissible under the law unless the conditions, specified in proviso to section 83, Cr.PC, are a fulfilled. However, in the instant case, though the learned Magistrate directed issuance of proclamation and attachment simultaneously under the order aforementioned, yet, such an order does not disclose that said order was passed in compliance of provisions of incorporated in section 83 of the Cr.PC. 8. According to the learned counsel for the petitioner, since the provisions of law laid down in sections 82 and 83 of the Cr.PC, were not complied with, in rendering the order under challenge, same becomes unsustainable in law and as such, such an order needs to be set aside and quashed. In support of such contention, my attention has been drawn to the decision of this court in the case of Nazrul Islam v. State of Assam, 2008 (1) GLT 979. The relevant part of the judgment is reproduced below : "20. Therefore, in order to issue a proclamation under section 82, Cr.PC, it is a sine qua non that court must have reason to believe that the person against whom proclamation has been issued" absconded" or is "concealing himself" so mat such warrant cannot executed and only on arriving at such a satisfaction, the court concerned is authorized to publish such proclamation. For attachment of the property of the person absconding it is also a sine-qua-non that the court issuing a proclamation must record the reasons in writing that such person is about to dispose of the whole or any part of his property or about to remove the whole or any part of his property from the local jurisdiction of the court and such satisfaction is to be arrived at by affidavit or otherwise. The word "other-wise" here would embrace making of such other enquiry as may be found necessary on the facts and circumstances of a given case taking note of antecedents and conduct of the accused as may be revealed from the record. 21. The word "other-wise" here would embrace making of such other enquiry as may be found necessary on the facts and circumstances of a given case taking note of antecedents and conduct of the accused as may be revealed from the record. 21. The issuance of proclamation and attachment as could be visualized from the aforesaid relevant provisions of the Cr.PC, is not an automatic and/ or casual one. Before issuance of such proclamation and attachment, the court must apply it judicial mind and must arrive at a decision disclosing his reason to believe. Mere return of warrant of arrest without execution without anything more does not authorize the Magistrate to issue an order for proclamation and attachment. Proclamation and attachment affects certain valuable rights of a person although he might be facing a criminal case as an accused and the same is not to be interfered with in a casual and mechanical manner, but is to be affected by strict adherence to the provision of law, noted above. 22. The aforesaid provisions of law, particularly sections 82 and 83, Cr.PC, makes it abundantly clear that the court must record its reasons to believe for taking such action and it must also satisfy about the ascendance of the accused as well as about the dealing with his property as contained under section 83, Cr.PC, and without such compliance, the issuance of such order for proclamation and attachment cannot be said to have done in valid exercise of power. 23. The record of the trial court, in the instant case, does not disclose that the aforesaid provisions of law has been duly complied with by the learned Magistrate and no satisfaction has been recorded justifying the impugned action before issuance of the order of attachment and/or P/A. The impugned order does not disclose that proper judicial mind was applied before passing the same. Hence the impugned orders cannot be sustained in the eye of law and accordingly those are set aside and quashed." 9. On the other hand,, Mr. B.J. Dutta, learned Addl. P.P. appearing for State of Assam submits that the learned Magistrate had issued proclamation and attachment against the petitioner on following the dicta of law, laid down in sections 82 and 83 of the Cr.PC, and as such, such an order does not suffer from any infirmity to invite any interference from this court. 10. B.J. Dutta, learned Addl. P.P. appearing for State of Assam submits that the learned Magistrate had issued proclamation and attachment against the petitioner on following the dicta of law, laid down in sections 82 and 83 of the Cr.PC, and as such, such an order does not suffer from any infirmity to invite any interference from this court. 10. I have considered the submissions, advanced by the leaned counsel for the parties, having regard to the various orders rendered in G.R. Case No.2350/2007 during the period between 10.10.2012 and 15.11.2014 and have found that in directing issuance of P&A against the accused/ petitioner under the order dated 15.11.2014, the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati did not follow the prescription of law, so rendered in sections 82 and 83, Cr.PC. 11. That being the position, in my considered opinion, the order under challenge insofar it relates to the present petitioner becomes unsustainable and same needs to be set aside and quashed. 12. Accordingly, the order under challenge insofar it relates to the present petitioner is set aside and quashed. 13. The petitioner is directed to appear before the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati within 10 days from today and make necessary application seeking bail in connection with the aforesaid case. 14. In the event of petitioner's appearing before the court below within the time fixed by this court and in the event of his making necessary application seeking bail in connection with the aforementioned case, learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati shall consider such application and dispose of the same in accordance with law as indicated above. 15. The copies of orders, rendered in G.R. Case No.2350/2007 during the period between 10.10.2012 and 15.11.2014 which are placed before this court today by the learned counsel for the petitioner be kept with record of for future reference. 16. The Crl. Rev. Petition is, accordingly, disposed of.