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2019 DIGILAW 30 (GAU)

JAKIR HUSSAIN v. STATE OF ASSAM

2019-01-11

M.R.PATHAK

body2019
ORDER : 1. Heard Mr. K. Sarma, learned counsel for the petitioner and Mr. R. J. Baruah, learned Addl. Public Prosecutor, Assam for the respondent No. 1 State. 2. Petitioner, namely, Sri Jakir Hussain, a Junior Engineer of the State Government, is an FIR named accused in North Lakhimpur Police Station Case No. 517/2009 registered under Section 409/420 IPC, re-registered as Panigaon Police Station Case No. 80/2013 corresponding to G.R. No. 669/2013 and also a charge sheeted accused in the said case for mis-appropriation of public fund. After filing of Charge sheet in the case, learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur by his order dated 18.02.2014 transferred the said G.R. Case No. 669/2013 to the Court of learned Sub-Divisional Judicial Magistrate, North Lakhimpur for disposal, who in turn on 04.03.2014 took cognizance of the offences under Sections 409/420 IPC against the petitioner in said G.R. Case No. 669/2013 and issued summons to him for his appearance in the matter. 3. On 04.07.2017 learned CJM, Lakhimpur, North Lakhimpur transferred the said G.R. Case No. 669/2013 to the Court of learned Additional Chief Judicial Magistrate, Lakhimpur, orth Lakhimpur from the Court of learned SDJM, North Lakhimpur, for favour of disposal and since then, the said GR Case is pending for disposal before learned Addl. CJM, North Lakhimpur. 4. As the petitioner did not appear in said G.R. Case No. 669/2013, as such the learned Trial Magistrate on 16.02.2016 and thereafter issued the orders of Non Bailable Warrant of Arrest (NBWA) and the order of Proclamation and Attachment (P&A) on 30.08.3018 against the petitioner for his appearance in the said G.R. Case. 5. Hence, this Criminal Petition by the petitioner for recalling the orders of NBWAs and P&A issued against him by the learned Trial Magistrate in said G.R. case No. 669/2013 enabling him to appear in the said matter on 19.01.2019. 6. It is seen from the annexures appended to this petition that in terms of order of this Court passed in B.A. No. 4887/2009, an application under Section 438 CrPC preferred by the petitioner, he surrendered before the learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur on 04.02.2010 and prayed for his bail in said North Lakhimpur PS Case No. 517/2009 and the learned CJM, North Lakhimpur by his order dated 04.02.2010 granted him ad-interim bail in the said Case. But as he did not appear in the matter on the dates fixed, learned Magistrate issued NBWA against him on 07.04.2010 fixing 13.04.2010 for his appearance. On 13.04.2010 petitioner did not appear before the said Magistrate and on 17.04.2010 he filed an application for extension of his ad-interim bail, without appearing in the matter. As such, learned Magistrate by his order dated 17.04.2010 rejected the said application of the petitioner and issued order of NBWA against him. 7. Against those orders dated 13.04.2010 and 17.04.2010 of the Magistrate, petitioner preferred Criminal Petition No. 116/2010 and this Court by its order passed in said Criminal Petition set aside those two orders. Thereafter, the learned CJM, North Lakhimpur by his order dated 28.09.2010 made the ad-interim bail dated 04.02.2010 passed in said North Lakhimpur PS Case No. 517/2009 absolute. 8. It is seen that the petitioner after obtaining regular bail in said North Lakhimpur PS Case No. 517/2009, which has been re-registered as Panigaon PS Case No. 80/2013, corresponding to G.R. Case No. 669/2013, did not appear in the said matter, inspite of receipt of summons in the said G.R. Case from the Court of learned Trial Magistrate. 9. It is also seen that occasionally, the petitioner though remained absent, but filed application seeking time for his appearance before the Trial Magistrate in the said G.R. Case in one pretext or the other and the Magistrate, considering the prayer of the petitioner use to extended the time for his appearance in the said case. But the petitioner never appeared before the Trial Magistrate even on the extended dates fixed. As such the Magistrate issued summons to the bailor of the petitioner Inamul Hussain, who even after taking many dates, also failed to produce the petitioner before the learned Trial Magistrate in the said G.R. Case and as such, he too made prayer before the Magistrate to take appropriate action against the petitioner for his appearance in the case. It is observed that because of such nonappearance of the petitioner in the said G.R. Case, the learned Trial Magistrate on 26.07.2018 initiated a proceeding under Section 446 of the Cr.PC against Sri Inamul Hussain, the bailor/surety of the petitioner in said Panigaon P.S. Case (earlier North Lakhimpur PS Case). 10. It is observed that because of such nonappearance of the petitioner in the said G.R. Case, the learned Trial Magistrate on 26.07.2018 initiated a proceeding under Section 446 of the Cr.PC against Sri Inamul Hussain, the bailor/surety of the petitioner in said Panigaon P.S. Case (earlier North Lakhimpur PS Case). 10. As seen from the annexures of this petition, it is worthwhile to mention herein that as the petitioner did not appear in the matter, the learned Trial Magistrate by his order dated 10.01.2018 fixed the said G.R. Case on 14.03.2018 for his appearance and on 14.03.2018, the petitioner remained absent with step and vide petition filed by him shown causes for his default and further prayed for some more time for his appearance in the case. Considering the same, the learned Trial Magistrate fixed the case on 16.05.2018 for appearance of the petitioner. But on 16.05.2018 the petitioner remained absent in the said G.R. Case. 11. It is clear from the above that the Petitioner is fully aware of the proceeding of said G.R. Case No. 669/2013, presently pending before the learned Additional CJM, Lakhimpur, North Lakhimpur, which pending since February 2014 and now fixed on 19.01.2019. 12. It is not the case of the petitioner that the learned Trial Magistrate did not consider his case and that he did not extend the time for his appearance in the said G.R. Case. On the other hand it is the petitioner who did not appear before the learned Trial Magistrate in the said G.R. Case, though he was granted time on many occasions for his appearance and when he did not comply with any of the order of the Court, the learned Trial Magistrate was constrained to pass the order of NBWAs and P&A against the petitioner for his willful non-appearance in the in the said G.R. Case No. 669/2013. 13. In this application under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for recalling of the orders of Warrant of Arrest, Non Bailable Warrant of Arrest and Proclamation and Attachment that are issued against him by the learned Trial Magistrate in the said G.R. Case No. 669/2013, presently pending before the learned Addl. 13. In this application under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for recalling of the orders of Warrant of Arrest, Non Bailable Warrant of Arrest and Proclamation and Attachment that are issued against him by the learned Trial Magistrate in the said G.R. Case No. 669/2013, presently pending before the learned Addl. Chief Judicial Magistrate, Lakhimpur, North Lakhimpur, which is now fixed on 19.01.2019, submitting that the said learned Magistrate should be directed to allow the petitioner to go on bail on his appearance before him on the said date fixed i.e., on 19.01.2019 and till then the Non Bailable Warrant of Arrest issued against him may be treated as a Bailable one. 14. In the said G.R. Case No. 669/2013, the learned Trial Magistrate, after taking cognizance of the offence under Sections 409/420 IPC, issued summons to the petitioner for the first time on 04.03.2014 and on 15.03.2015 vide petition No. 534/2015, the petitioner remained absent with step, which he continued to do till 07.01.2016. As he remained absent without any step in the said G.R. Case, the learned Trial Magistrate on 16.02.2016 issued the order of NBWA against the petitioner for his appearance and also similar orders there after. 15. The petitioner, no doubt a government employee and the FIR dated 27.07.2009 involved in the case was filed against the petitioner by the Block Development Officer of Telahi Block, Lakhimpur District as he, while serving as Junior Engineer of Telahi Block, had misappropriated Government money for construction of Chanong Middle Road 2008-09 under NREGS Scheme of Telahi Block. Petitioner stated that for emergent NRC duty, Gunatsov and Panchayat Election he could not appear before the Court. 16. With regard to the exercise of inherent power under Section 482 Cr PC by the High Court, the Hon’ble Supreme Court in the case of Kurukshetra University Vs State of Haryana, reported in (1977) 4 SCC 451 have held that - It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. 17. In the case of Mohd. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. 17. In the case of Mohd. Malek Mondal Vs Pranjal Bardalai, reported in (2005) 10 SCC 608 , the Hon’ble Supreme Court have held that - We may also note that wide extraordinary power of quashing vested in the High Court is to be exercised sparingly and with caution and not to stifle legitimate prosecution. Such a power is required to be exercised in a case where the complaint does not disclose any offence and it is frivolous, vexatious or oppressive. 18. The Hon’ble Supreme Court in the case of State of Orissa Vs Saroj Kumar Sahoo, reported in (2005) 13 SCC 540 , have held that - All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle of “quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest” (when the law gives a person anything, it gives him that without which it cannot exist). While exercising the powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 19. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 19. In Sunita Jain Vs Pawan Kumar Jain, reported in (2008) 2 SCC 705 , the Hon’ble Supreme Court have held that - it is well settled that inherent power under Section 482 of the Code must be exercised in the rarest of rare cases. 20. The Hon’ble Supreme Court in the case of Divine Retreat Centre Vs State of Kerala, reported in (2008) 3 SCC 542 have held that - In our view, there is nothing like unlimited arbitrary jurisdiction conferred on the High Court under Section 482 of the Code. The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the Court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 21. In the case in hand, it is not the case of the petitioner that to prevent the abuse of the process of the Court and/or to otherwise secure the ends of justice and/or to give effect to an order under the Code, this Court should exercise its inherent power to recall the orders of W/A, NBWA and P&A that are issued against him by the learned Trial Magistrate in the said G.R. Case No. 669/2013 and for the said purpose direction should be issued to the said learned Magistrate to allow the petitioner to go on bail on his appearance before the said Magistrate on the next date of the case that is fixed on 19.01.2019. The facts of the present case no where discloses that it is an extraordinary and/or rarest of the rare case so as to exercise the extraordinary power conferred upon the High Court under the Cr.P.C. 22. The facts of the present case no where discloses that it is an extraordinary and/or rarest of the rare case so as to exercise the extraordinary power conferred upon the High Court under the Cr.P.C. 22. For the reasons above as well as the conduct of the petitioner, as discloses in the petition, this Court is of the view that that it is not a fit case to exercise the power under Section 482 Cr PC as conferred upon this Court to recall the orders of Warrant of Arrest, Non Bailable Warrant of Arrest and Proclamation and Attachment that are issued against him, i.e., the petitioner, namely, Jakir Hussain, by the learned Trial Magistrate in the said G.R. Case No. 669/2013, the proceeding of which is presently pending before the learned Additional Chief Judicial Magistrate, Lakhimpur, North Lakhimpur. 23. Accordingly, this criminal petition being devoid of any merit stands dismissed. 24. However, it is made clear that in the event of the petitioner approaching the learned Trial Magistrate for his bail and/or recalling the orders of W/As, NBWAs and P & As passed in said G.R. Case No. 669/2013, the learned Additional CJM, Lakhimpur, North Lakhimpur shall consider the same in accordance with law securing the presence of the accused petitioner in the said G.R. Case on the dates it is fixed and during the trial of the said G.R. Case.