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IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE NO.5,

KAMRUP (M), GUWAHATI

Present : Smti. R. Sarmah, A.J.S.

Addl. Sessions Judge No.5,
Kamrup (M), Guwahati.

CRIMINAL REVISION No. 22/2020

Baban Dom …..... Petitioner.

-Vs-

1. State of Assam
2. Indravati Basfor ….……. Respondents

Date of argument : 25/03/2021

Date of Judgment : 01/04/2021

Appearance for the Parties : -

Advocates for the Petitioner: A.B. Siddique, C.R. Rabha & B. Das

Advocate for the Respondents: Smt. Meenara Ahmed & Sri

Dhrubajyoti Sarma, Learned Addl.
Public Prosecutor.

JUDGEMENT

1. The present revision has been filed by the petitioner/accused Baban

Dom against order dated 20.12.2019 passed by the learned Court of
JMFC, Kamrup (M), Guwahati in G.R. Case No. 3457/2008.

2. The aforesaid G.R. Case No. 3457/2008 was registered on the basis of
an FIR lodged by the Respondent/wife of the Revision petitioner
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alleging physical and mental torture by the petitioner. On receipt of the

said F.I.R all women P.S case no. 28/2008 was registered U/S 498 A
I.P.C and investigated. After completion of investigation, charge sheet
was submitted against the petitioner U/S 498 A IPC on 09-01-2009. In
connection with the above case, the petitioner was arrested and
released on bail but he had no knowledge about filing of charge sheet
against him as he never received any summons issued by the Learned
Trial court. Due to non-appearance of the petitioner the Learned Trial
court had issued Non-Bailable warrant of arrest and subsequently P &
A had been issued against the petitioner from 14-08-2015 to 20-12-
2019.

3. Being highly aggrieved by and dissatisfied with the order dated

20.12.2019 passed by the learned Court of JMFC, Kamrup (M),
Guwahati in G.R.Case No. 3457/2008, the petitioner/accused preferred
the revision on the grounds set forthwith in the petition itself.

4. LCR called for has been received and perused the same along with the
averments in the revision petition and the impugned order.

5. Heard arguments advanced by the learned counsel for the petitioner

and learned Additional Public Prosecutor. Ld. Counsel for the opposite
party No. 2 submitted that O.P. No. 2 has no objection against the
prayer of the revision petitioner.

6. Ld. Counsel for the petitioner submitted that although the Informant/
Respondent had left the house of the petitioner due to an altercation
arising between them, the Informant came back to the house of the
petitioner after three months of the incident and had been living
together peacefully having no grievance against each other. He
submitted that the petitioner would have appeared before the Ld. Trial
court if he would have received any summons, but due to non
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receiving of any summons, the petitioner could not appear before the
Learned trial court and accordingly NBWA as well as P& A has been
issued against him. It is further contended that in the last week of
January, 2020 the police form Dispur P.S. came to the house of the
petitioner in his absence and wanted to arrest him. Not finding the
petitioner in his house, the police informed his family members about
the present case pending against him and thereafter the Petitioner
obtained the certified copies of the order of Ld. Trial Court and came
to know that the present case is pending for trial since 2009. Ld.
Counsel for the petitioner submitted that the petitioner is very much
willing to appear before the Ld. Trial court and to face the Trial but the
petitioner is apprehending to appear before the Ld Trial court as NBWA
as well as P & A has been issued against him. Ld. Counsel submitted
that the impugned order of issuing Non-Bailable Warrant of arrest
caused prejudice to the petitioner because he had not received any
summons issued by the Ld. Trial court. He further submitted that there
is no negligence on the part of the petitioner in appearing before the
Ld. Court below and as such prayed to set aside the impugned orders
dated 02-02-2015, 25-05-2015, 07-07-2015, 04-08-2015, and 14-08-
2015 to 20-12-2019.

7. Upon perusal of the impugned order together with the Chronological

history of the case it appears that charge sheet against the Revision
petitioner was submitted / laid on 30-03-2010 u/s 498(A) IPC. From
29-04-2010 to 02-08-2014 summons were issued to the accused
person and the case was fixed for appearance of the accused person.
From 02-02-2015 onward and on successive dates NBWA was issued
against the petitioner. From 18-04-2015 to 26-04-2018 NBWA and P &
A was issued. On 09-07-2018 after perusing the case record and report
of Executing officer the Learned Trial Court again issued P & A at the
permanent address of the accused and kept the warrant in the pending
file of the P.S and fixed 12-09-2018 for Appearance/report and from
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12-09-2018 the case was stagnating at the stage of Appearance/

report till 20-12-2019.

8. Section 62 Cr.P.C. reads as : – “ Summons how served – (1)

Every summons shall be served by a police officer, or subject to such
rules as the State Government may make in this behalf, by an officer
of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the
person summoned, by delivering or tendering to him one of the
duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so
required by the serving officer, sign a receipt therefore on the back of
the other duplicate.

9. Section 64 Cr.P.C. reads as: – “Service when persons

summoned cannot be found – Where the person summoned
cannot, by the exercise of due diligence, be found, the summons may
be served by leaving one of the duplicates for him with some adult
male member of his family residing with him, and the person with
whom the summons is so left shall, if so required by the serving
officer, sign a receipt therefore on the back of the other duplicate.
Explanation – A servant is not a member of the family within the
meaning of this section.

10. Section 65 Cr.P.C. reads as : – “Procedure when service cannot

be effected as before provided – If service cannot by the exercise
of due diligence be effected as provided in section 62, section 63 or
section 64, the serving officer shall affix one of the duplicates of the
summons to some conspicuous part of the house or homestead in
which the person summoned ordinarily resides; and thereupon the
Court, after making such inquiries as it thinks fit, may either declare
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that the summons has been duly served or order fresh service in such
manner as it considers proper.

11. The Court should enquire about service of summons and is required to
be satisfied to that effect. If it is found that the accused after receipt of
summons failed to appear before court, court can issue warrant, if
necessary NBWA to ensure presence of accused.

12. The record of the trial Court, in the instant case, does not reflect that
the aforesaid provisions of law have been duly complied with by the
learned court below.

13. SECTION 87 OF Cr.P.C. reads as follows : - “ 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 –
(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
(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.

14. This section gives power to issue a warrant in lieu of, or in addition to
a summons. It can be exercised only in 2 cases. (1) Where the court
believes that the person summoned has absconded or will fail to turn
up, & (2) where he has without reasonable cause failed to appear.
Reasons for exercise of the said power should be spelt out in the
order. The omission to do so is an irregularity. In the instant case no
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ground of satisfaction has been recorded justifying the impugned

action before issuance of the order of NBWA against accused/
petitioner.

15. Section 82 of Cr.P.C.:- As per section 82(1) of Cr.P.C., if any 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 written
proclamation requiring him to appear at a specific place and at a
specific time not less than 30 days from the date of publishing such
proclamation. But in the instant case there is nothing on record to
show that the court expressed its satisfaction that the accused person
absconded or is concealing himself before issuing proclamation.

16. Perusal of entire materials on record nowhere reveals that any of the
summons or subsequent W/A issued against present petitioner were
ever served upon him or executed.

Perusal of all the relevant reports in respect of issue of

summons or W/A reveals that summons and warrants of arrest issued
returned un-served and unexecuted stating that the instant petitioner
could not be traced out in the address mentioned in the summons or
warrant and serving/executing agency sought more time for
service/execution. Thus, NBWA, P & A issued against the petitioner
vide orders dated 02/02/2015 and 18/04/2015 and on successive dates
respectively were not warranted in law as there is no material on
record to show that accused having knowledge of the Court proceeding
is avoiding process of the Court.

17. In Raghuvansh Dewanchand Bhasin V. State of Maharastra

and another (2012) 9 SCC 791 it has been held that power to issue
NBWA, has to be exercised judicially and not arbitrarily. It needs little
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emphasis that since the execution of 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.

18. 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.

19. Hon’ble Supreme Court in 1976 3 SCC page 1 (State of Uttar Pradesh
Vs. Poosu and another) has held that “the power being discretionary
must be exercised judicially with extreme guard and caution. The court
should properly balance both personal liberty and public interest before
issuing warrant. There cannot be any straight jacket formula. For
issuance of warrant but as a general rule, unless an accused is charged
with the commission of offence of a heinous crime and it is feared that
he is likely to temper or destroy the evidence or likely to evade process
of law, issuance of non bailable warrant of arrest should be avoided”.
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20. Considering the entire facts and circumstances of the case and in view
of foregoing discussion and reasons the instant revision is allowed.
Order of issuance of NBWA and P & A against the accused on 02-02-
2015, 18-04-2015 and on other subsequent dates are set aside.
Proclamation along with NBWA issued against petitioner vide order
dated 20/12/2019 is hereby re-called and the accused is directed to
appear before the learned Trial Court within a period of 7 days from
the date of passing of this order and on his appearance learned trial
court shall consider his prayer for grant of bail if so made and may put
any condition as it may deem fit and proper for securing his presence.
Further on his failure to appear before the learned Court as directed,
the learned Court shall proceed as per procedure of law.

21. Stay order passed on 13/03/2020 stands vacated.

22. Send back the LCR forthwith to the learned court below with a copy of
this judgment.

The instant revision petition is disposed of accordingly.

Given under my hand and seal of this court on this the 1st day of
April, 2021 at Guwahati.

Additional Session Judge No.5,

Kamrup (M), Guwahati.
Dictated & Corrected by me

Additional Session Judge No.5,

Kamrup (M) Guwahati