Rajesh Barua Vs the State of Assam

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Page No.# 1/11

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GAHC010168982025

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2025:GAU-AS:11184

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./936/2025

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Rajesh Barua, S/o Late Satya Ranjan Barua, Resident of Village – Madhab Master Para, P.O.-Madhab Master Para, P.S.-Mainama, District – Dhalai, Tripura, Pin – 799275. ……………… Petitioner - VERSUS - The State of Assam, Represented by the Public Prosecutor, Assam at Gauhati High Court. ………………. Respondent Advocates : Petitioner : Mr. M.U. Mahmud, Advocate. Respondent : Mr. M.P. Goswami, Additional Public Prosecutor Date of Hearing, Judgment & Order : 12.08.2025

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Page No.# 2/11

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT & ORDER

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The instant criminal petition under Section 528, Bharatiya Nagarik Suraksha Sanhita, 2023 [BNSS] is preferred to assail an Order dated 23.02.2023 and other subsequent and consequent orders passed by the Court of learned Additional Chief Judicial Magistrate, Kamrup at Amingaon [‘the Trial Court’, for short], whereby, the Trial Court has issued non-bailable warrant of arrest [NBWA] against the petitioner as a charge-sheeted accused in G.R. Case no. 115/2014 [earlier, G.R. Case no. 6517/2009].

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A First Information Report [FIR] was lodged before the Officer In-Charge, Palashbari Police Station on 29.07.2009 by a Sub-Inspector of Police attached to Palashbari Police Station in reference to General Diary Entry no. 827 dated 28.07.2009. As per the FIR, basing on an information received from a source to the effect that narcotic substances were being carried by a truck bearing registration no. NL-08/A-0970 [‘the subject-vehicle’, for short] and proceeding towards Guwahati, the subject-vehicle was intercepted at an area near Barkuchi. On a search being made inside the subject-vehicle, in presence of witnesses, 73 nos. of gunny bags were found under bags containing rice and each gunny bag was found containing 4 nos. of cartoons. Each of the cartoons contained 50 nos. of Phensedyl bottles. The Phensedyl bottles were seized. The said FIR was registered as Palashbari Police Station Case no. 169/09 under Sections 468/471, Indian Penal Code [IPC].

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Page No.# 3/11

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On registration of Palashbari Police Station Case no. 169/2009 and during the course of investigation, the petitioner was arrested. After arrest, the petitioner was forwarded to the Court of learned Chief Judicial Magistrate, Kamrup at Amingaon. On being so produced, he was remanded to custody. Subsequently, the petitioner was allowed to go on bail.

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It transpires that after completing investigation, the Investigating Officer [I.O.] of the case submitted a charge-sheet being Charge-Sheet no. 112/2010 on 31.05.2010 finding sufficient incriminating materials against six nos. of accused persons including the petitioner, for committing offences under Sections 468/471/34, IPC.

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The petitioner has averred that he is a permanent inhabitant of Tripura and after being released on bail, he went back to his native place at Tripura. The petitioner has further asserted that after filing of the Charge-Sheet on 31.05.2010, no summons was received by him or his family from the Trial Court. Subsequent to submission of the Charge-Sheet, the petitioner also went to Kerala to earn his livelihood and he stayed in the State of Kerala for a number of years.

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From the Order dated 23.02.2023 passed by the Trial Court, it can be noticed that summons were issued to six nos. of charge-sheeted accused persons but till that date, all the six charge-sheeted accused persons so summoned, did not appear before the Trial Court. A Report was submitted to the effect that one of the charge-sheeted accused persons, namely, Ajit Singh was dead. Summons issued to other four accused persons, namely, [i] Narendra

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Singh, [ii] Avatar Singh, [iii] Sukdev Singh, and [iv] Gurudev Singh, returned with a Report of non-traceability. In so far as the petitioner is concerned, the Trial Court had recorded that summons issued to him did not return. As the records reflected that the summons had continuously been issued to the petitioner from the date of being charge-sheeted, without any fruitful result, the Trial Court taking note of the fact of long pendency of the case at the stage of appearance, deemed it justified to issue proclamation and attachment [P&A] along with non-bailable warrant of arrest [NBWA] against the petitioner. By the Order dated 23.02.2023, the Trial Court posted the case on 28.04.2023 for appearance and for report on P&A/NBWA.

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On subsequent dates, 28.04.2023, 26.06.2023, 02.08.2023, 05.09.2023, 17.10.2023, 13.12.2023, 08.02.2024, 01.04.2024, 21.05.2024, 18.07.2024 and 25.09.2024, none of the accused persons were found present and the Trial Court ordered for issuance of fresh NBWAs and P&A against all of them. On 12.12.2024, all the six accused persons, namely, [i] Ajit Singh, [ii] Narendra Singh, [iii] Avatar Singh, [iv] Sukdev Singh, [v] Gurudev Singh and [vi] Rajesh Baruah, were found absent. The Trial Court observed that NBWAs and P&As issued against the accused persons did not return and ordered for issuance of fresh NBWAs and P&As against them. Recording that G.R. Case no. 115/2014 is an old pending case and pending since 2010, the Trial Court observed that the chance of appearance of the accused persons in a short period would be very less. The Trial Court observing that till receipt of the death report in respect of the deceased accused person, Ajit Singh and P&A Report on the remaining accused persons including the petitioner, the case be filed until further orders.

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Page No.# 5/11

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The provision for publication of proclamation for person absconding and issue of warrant in lieu of, or in addition to, summons are contained in Section 82 and Section 87 of the Code of Criminal Procedure, 1973 and they read as under :-

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Section 82. Proclamation for person absconding –

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[1] If any Court has reason to believe [whether after taking evidence or not] that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.

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[2] The proclamation shall be published as follows—

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[i] [a] it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

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[b] it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

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[c] a copy thereof shall be affixed to some conspicuous part of the Court house;

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[ii] the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

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[3] A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause [i] of sub-section [2], shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

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[4] Where a proclamation published under sub-section [1] is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code [45 of 1860], and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

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[5] The provisions of sub-sections [2] and [3] shall apply to a declaration made by the Court under sub-

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section [4] as they apply to the proclamation published under sub-section [1].

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Section 87 - Issue of warrant in lieu of, or in addition to, summons – A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—

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[a] If, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or

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[b] If at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

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In the Order dated 23.02.2023, the Trial Court deemed it had justified to issue to non-bailable warrant of arrest [NBWA] as well as Proclamation & Attachment [P&A] against the petitioner at the same time. As per the provision of Section 82, CrPC, it is only if a Court has reason to believe that any person against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation. Meaning thereby, it is only after issuance of a warrant of arrest, steps for issuance of publication of proclamation can be made. In the subsequent orders also, the same were repeated.

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The condition precedent for initiation of an action under Section 82, CrPC is prior issuance of warrant of arrest by the concerned Court. A plain reading of Section 82[1], CrPC shows that before a proclamation is issued, the Court should have reasons to believe [whether after taking evidence or not], that a person against whom warrant was issued has absconded or is concealing himself and that the warrant cannot be executed. The satisfaction could be subjective but it cannot be without any material basis. Only after recording such

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satisfaction, the Court can direct publication of a written proclamation requiring such person to appear at a specified place within a specified period. It has been observed in Srikant Upadhyay and others vs. State of Bihar, 2024 SCC OnLine SC 282, that to reach a satisfaction that a person is absconding, evidence is required to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. Such evidence was apparently missing before the Court on 23.02.2023 to reach a satisfaction that the petitioner was absconding despite knowing about the pendency of warrant of arrest. It was not permissible for the Trial Court to simultaneously issue warrant of arrest and proclamation against the petitioner and as such, the order of issuance of proclamation under Section 82, CrPC is contrary to the mandate of law rendering it unsustainable in law.

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In so far as the issuance of non-bailable warrant of arrest [NBWA] is concerned, the Court is to be guided by the parameters set forth in Section 87, CrPC. As per Clause [a] of Section 87, CrPC, if the Court has reason to believe that the person has absconded or will not obey the summons, the Court is justified to issue a warrant of arrest. Under Section 87[b], CrPC, if summons is proved to have been duly served on the person and the person has failed to appear without reasonable excuse, the Court would be justified to issue a warrant of arrest to secure such person’s appearance before it. Every warrant issued by a Court remains in force until it is cancelled by the Court which issued it, or until it is executed.

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Finding that in many cases, warrant of arrests [BWA or NBWA] are issued casually and mechanically, a three-Judge Bench of the Hon’ble Supreme Court

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in Inder Mohan Goswami and another vs. State of Uttaranchal and others, [2007] 12 SCC 1, has observed in the following manner :-

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Personal liberty and the interest of the State

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50. Civilised countries have recognised that liberty is the most precious of all the human rights. The American Declaration of Independence, 1776, French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice—liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law.

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51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.

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When non-bailable warrants should be issued

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53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

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it is reasonable to believe that the person will not voluntarily appear in court; or

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the police authorities are unable to find the person to serve him with a summon; or

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it is considered that the person could harm someone if not placed into custody immediately

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54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

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56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an

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accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of nonbailable warrants should be avoided.

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57. The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant.

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Following Inder Mohan Goswami [supra], the Hon’ble Supreme Court in Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and another, [2012] 9 SCC 791, has proceeded to observe as under :-

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10. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically but only after recording satisfaction that in the facts and circumstances of the case it is warranted. The courts have to be extra-cautious and careful while directing issue of non-bailable warrant else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain the rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex exercise. As Cardozo, J. puts it “on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.” [ Ed. : As observed by Cardozo, J. in People v. Defore , 242 NY 13, at 24 : 150 NE 585, at 589 (1926)].

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11. Be that as it may, it is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law-enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding. (Also see State of U.P. v. Poosu [(1976) 3 SCC 1 : 1976 SCC (Cri) 368] .)

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There is nothing in the materials on record and also not in the orders that summons issued earlier were proved to duly served as per the procedure laid down in the Code. Apparently, none of the two situations envisaged clause [a] or clause [b] of Section 87, CrPC seemed to be present before the Court to provide any reason to believe that the petitioner had absconded. There is no report from Police that it had visited at the correct address of the petitioner. It has, thus, emerged that the order for issuance of warrant of arrest [NBWA] was not as per the mandate of law.

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It is a settled proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. If an order at the initial stage, like the Order dated 23.02.2023, is bad in law, then all further and other orders, consequent thereto, have to be necessarily set aside.

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The petitioner has approached this Court by the present petition undertaking that he is ready and willing to participate in the further proceeding of G.R. Case no. 115/2014 by appearing in person and by submitting himself to the jurisdiction of the Trial Court within a short time. It is submitted on his behalf that he has apprehension that he might be taken into custody in execution of the NBWAs issued already against him. It has been further submitted that if the NBWAs issued against him are kept in abeyance for a limited period, the same would facilitate the appearance of the petitioner before the Trial Court without such apprehension.

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In view of the discussion made above and for the reasons stated therein, the Order dated 23.02.2023 and the other subsequent and consequent orders issuing NBWAs and P&As are found to be one which cannot stand the scrutiny of law and as such, the same are set aside.

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Having regard to the fact of non-appearance of the accused persons in the proceedings of G.R. Case no. 115/2014 till date and the undertaking made by the petitioner, this Court is of the considered view that in the interests of justice, the petitioner is directed to appear before the Trial Court on or before 31.08.2025. If the petitioner appears and submits to the jurisdiction of the Trial Court within such period and prefers an application for bail, the Trial Court shall consider the bail application on its own merits and in accordance with law.

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The criminal petition is disposed of in the afore-stated terms. No cost.

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JUDGE

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Rajesh Barua v. the State of Assam

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Rajesh Barua v. the State of Assam

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