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IN THE HIGH COURT OF GAUHATI (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
M.R.PATHAK, J.
JAKIR HUSSAIN - Petitioner
VERSUS
THE STATE OF ASSAM AND ANR. - Respondent
Crl.Pet. 43 of 2019
Decided On : 11-01-2019
Indian Penal Code, 1860 - Sections 409 and 420 - Criminal Procedure Code, 1973 - Sections 438, 446 and 482 - Mis-appropriation of public fund - Petitioner a Junior Engineer of State Government is an FIR named accused in North Police Station Case registered under Section re-registered as Police Station Case corresponding to GR and also a charge sheeted accused in said case for mis-appropriation of public fund - After filing of Charge sheet in case learned Chief Judicial Magistrate North by his order transferred said GR Case to Court of learned Sub-Divisional Judicial Magistrate North for disposal who in turn on took cognizance of offences against petitioner in said GR Case and issued summons to him for his appearance in matter - As petitioner did not appear in said GR Case as such learned Trial Magistrate and thereafter issued orders of Non Boilable Warrant of Arrest (NBWA) and order of Proclamation and Attachment (P&A) on against petitioner for his appearance in said GR Case – Held, In case in hand it is not case of petitioner that to prevent abuse of process of Court and/or to otherwise secure ends of justice and/or to give effect to an order under Code this Court should exercise its inherent power to recall orders of W/A NBWA and P&A that are issued against him by learned Trial Magistrate in said GR Case and for said purpose direction should be issued to said learned Magistrate to allow petitioner to go on bail on his appearance before said Magistrate on next date of case that is fixed - Facts of present case nowhere discloses that it is an extraordinary and/or rarest of rare case so as to exercise extraordinary power conferred upon High Court - For reasons above as well as conduct of petitioner as discloses in petition this Court is of view that that it is not a fit case to exercise power as conferred upon this Court to recall orders of Warrant of Arrest Non Boilable Warrant of Arrest and Proclamation and Attachment that are issued against him i-e petitioner by learned Trial Magistrate in said GR Case proceeding of which is presently pending before learned Additional Chief Judicial Magistrate - Petitioner stands dismissed.
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
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