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2014 DIGILAW 110 (GAU)

Ali Hussain v. State of Assam

2014-01-28

A.K.GOSWAMI

body2014
JUDGMENT Arup Kumar Goswami, J. 1. Heard Mr. M.U. Mahmud, learned counsel for the petitioners. Also heard Mr. Z. Kamar, learned Public Prosecutor, Assam for the opposite party No. 1. This application under Section 482 Cr.P.C. is directed against the order dated 23.4.2012 and other orders passed on various dates by the learned Judicial Magistrate, 1st Class, Bijni whereby NBWA was issued against the petitioners in connection with GR Case No. 319/2011 corresponding to Bijni P.S. Case No. 182/2011. The next date of the case is fixed on 12.3.2014. 2. The aforesaid police case was registered on the basis of an Ejahar lodged by one Nur Mohammad Sk before the Officer-In-Charge, Bijni Police Station against 5 persons including the present two petitioners on 2.7.2011 alleging, inter alia, that about a year back, the petitioner No. 1 sold a cow to him, at a price of Rs. 3,500/-, which, later on, transpired, that did not belong to him but in fact, belonged to his elder brother, Md. Matlib Ali. The cow, in terms of a public decision, was returned to said Md. Matlib Ali and he had requested accused petitioner No. 1 to return the purchase value to the informant. On 1.7.2013, while a similar request was made for return of the money, the petitioner No. 1 assaulted the informant and took away Rs. 10,000/- form his pocket. It is also stated that there was some further attempt by the accused person to assault him and his daughter and son-in-law were also assaulted as a result of which they had to be admitted to Bijni Bhetagaon 30 bedded Hospital. 3. After completion of investigation, charge-sheet was submitted on 31.7.2011 under section 141/448/323/420/34 IPC. In the charge-sheet against column No. 2, it was mentioned that the present petitioners could not be arrested because they were evading arrest and a prayer was made for issuance of NBWA. 4. Mr. Mahmud, learned counsel for the petitioners submits that at no point of time the police looked for the petitioners to arrest them although they were very much available in their own residences and in support thereof, he has drawn the attention of the court to two certificates issued-one by the President, Alukhunda Gaon Panchayat and other by the Chairman, Monakocha V.C.D.C., Monakocha. It is also contended by him that the learned Magistrate acted illegally in issuing NBWA without issuing summons. It is also contended by him that the learned Magistrate acted illegally in issuing NBWA without issuing summons. It is further submitted by him that the petitioners were not aware of the proceeding. He has also submitted that in column No. 2 of the charge-sheet, the petitioners had been shown to be absconders though police cannot declare accused persons as absconders. It is in the aforesaid premises, the learned counsel for the petitioners submits that the impugned orders should be set aside and the learned trial court may be directed to release the petitioners on bail on their appearance. He has stated that the petitioners will appear on the dates as may be fixed by the learned trial court. 5. Mr. Z. Kamar, learned Public Prosecutor has submitted that Rule 217 Part-V of the Assam Police Manual under the heading "Circle Inspectors and Police Stations" provides for instruction for filling up of charge-sheet. Column-2 of the said form provides that in the Form No. 148 of Schedule XL (A) part-1 pertaining to Final Form and under item-C in the counterfoil, the names of only those absconders against whom investigating officer intends to proceed should be entered. Mr. Kamar is very clear in submitting that police does not have any authority to declare a person absconder and it is for the trial Magistrate to proceed in accordance with law as enumerated u/s. 82 of the Cr. P.C. and to that extent there seems to be a conflict between the Form and the provisions of the Cr. P.C. He also stated that Magistrate will not be guided merely because a person is shown as absconder in the charge-sheet and it is for the Magistrate concerned to apply his independent mind and if he has reasons to believe that a person against whom an warrant has been issued has absconded or is concealing so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specified place at a particular time not less then 30 days from the date of publishing such proclamation. Admittedly, the Magistrate has not declared the petitioners as absconders as the records of the proceeding of the court below would go to show. 6. Admittedly, the Magistrate has not declared the petitioners as absconders as the records of the proceeding of the court below would go to show. 6. Learned Public Prosecutor submits that the order dated 9.2.2012 and 19.3.2012 were passed directing issuance of process without even indicating what kind of process is to be issued - whether summons or BWA or NBWA and on 23.4.2012, holding that the accused is absent, NBWA against the petitioners was issued. Mr. Kamar submits that it is incumbent on the part of the Magistrate to indicate specifically the nature of process to be issued against an accused person. 7. I have perused the order sheet from 2.2.2012 annexed as Annexure-5 of this petition. A perusal of the order sheet would go to show that order dated 2.2.2012 did not mention about issuance of any process of any kind yet, inexplicably, in the order dated 9.2.2012, it is ordered to issue a fresh process against the accused persons. This indicates non application of mind on the part of the learned Magistrate. The previous order has not been adverted to and process has been directed to be re-issued without specifying what kind of process had to be issued. It is expected that at the time of issuance of BWA or NBWA after the submission of the charge-sheet, there is some application of mind on the part of the Magistrate. 8. After hearing the learned counsel for the parties and considering the matter in its entirety, it is considered appropriate to direct that NBWA issued against the petitioners shall not be executed till the next date fixed. The petitioners will appear before the learned trial court on the next date fixed, as submitted by Mr. Mahmud. 9. This court declines to give a direction to the learned trial court with regard to the discretion to be exercised by it in the matter of grant of bail in the event of any application is filed by the petitioner. However, it is needless to say, if any application for bail is filed on their appearance, the learned trial Magistrate would consider the materials available on record in its correct perspective and pass appropriate order with regard to such bail application in accordance with law. 10. The infirmity pointed out by Mr. Kamar in column-2 of the Final Form is left to be considered in a more appropriate case. 10. The infirmity pointed out by Mr. Kamar in column-2 of the Final Form is left to be considered in a more appropriate case. For the present, a copy of this order be furnished to Mr. Z. Kamar, learned Public Prosecutor, Assam so as to enable him to interact with the authorities on the subject of column No. 2 in the Final Form. The petition is disposed of. Disposed off.