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2018 Supreme(Gau) 1656
IN THE HIGH COURT OF GAUHATI AT ITANAGAR BENCH
Nelson Sailo, J.
Legem Takaliang and Ors. - Appellants
Vs.
State of Arunachal Pradesh and Ors. - Respondents
Crl. Rev. P. No. 10 (AP) of 2018, A.B. No. 141(AP) of 2018 and B.A. No. 37(AP) of 2018
Decided On : 05-10-2018
For the Appellant :C.W. Mantaw and B. Kri, Advocates
For the Respondents:N. Lowang, K. Saxena, R.L. Thungon, Y. Riram and H.K. Jamoh, Advocates
Headnote:
Criminal Procedure Code – Section 438, 41(A), 11, 177, 167(2A) – Prevention of Damage to Public Property Act, 1984 – Sections 3 – Indian Penal Code – Sections 120(B), 147, 148, 149, 452, 353, 302 – POCSO Act – Section 6 – Constitution of India – Article 21 – Anticipatory bail – Impugned order – Order of remand – Jurisdiction – Interrogation – Since matters are all related, they are taken up together for final disposal – Criminal Revision Petition is filed by 5 accused persons being aggrieved by impugned order, passed by learned Executive Magistrate, Office of Deputy Commissioner at Yupia, whereby, non-bailable warrant of arrest was issued by him directing arrest of petitioners/accused persons – Held, Apex Court, negating liberal view taken by High Court held that Collector concerned was empowered only in respect of acquisition of land relating to Cochin Refineries Ltd. and that there was no question of taking a liberal view or a conservative view – Only view which has to be taken is legal view – Same principle in court considered opinion will apply to present case as well i.e. on jurisdiction of a Judicial Magistrates in matters of remand and also to powers which can be exercised by an Executive Magistrate, under exception provided in Section 167 (2A) of Cr.P.C – Thus, issue raised on this aspect is accordingly answered – Application Dismissed
JUDGMENT :
Nelson Sailo, J.
1. Heard Mr. C.W. Mantaw, the learned counsel for the petitioner/applicants. Also heard Mr. N. Lowang, the learned Sr. Govt. appearing for the State of Arunachal Pradesh.
2. Since the matters are all related, they are taken up together for final disposal.
3. Criminal Revision Petition No. 10 (AP) 2018 is filed by 5 (five) accused persons namely Shri. Legem Takaliang, Shri. Charanso Halai, Shri. Asadso Ngadong, Shri. Chowkhia Tayang and Shri. Behenso Pul, being aggrieved by the impugned order dated 6.7.2018, passed by the learned Executive Magistrate, Office of the Deputy Commissioner at Yupia, whereby, non-bailable warrant of arrest (NBWA) was issued by him directing the arrest of the petitioners/accused persons.
4. AB No. 141(AP) 2018 is filed by two accused applicants Shri. Charanso Halai and Shri. Asadso Ngadong jointly under Section 438 of the Cr.P.C. for anticipatory bail apprehending their arrest by the Special Investigation Team (SIT), in connection with Yupia GR. Case No. 442/2018 corresponding to Tezu P.S Case No. 22/2018 under Sections 120(B)/147/148/149/452/353/302 IPC read with Sections 3 of the Prevention of Damage to Public Property Act, 1984 (PDPP Act).
5. Bail Application No. 37/2018 is filed by the accused applicants namely Shri Lega Takaliang, Shri. Chowkhia Tayang and Shri. Behenso Pul under Section 439 of the Cr.P.C. for their release on bail and they were arrested by the SIT, Itanagar on 05.08.2018 in connection with GR. Case No. 442/2018 corresponding to Tezu P.S Case No. 22/2018 under Sections 120(B)/147/148/149/452/353/302 IPC r/w Section 3 of the PDPP Act on the strength of the order dated 06.07.2018 passed by the Executive Magistrate, Yupia in GR Case No. 22/2018.
6. Coming to the Criminal Revision Petition, facts of the case may be noticed at the outset. On 19.02.2018, an FIR was lodged by Sub Inspector Ms. Nich Rupa, respondent No. 2 before the Officer Incharge of Tezu Police Station to the effect that on the same day at about 12:05 hours, a mob numbering around 800 to 900 comprising of youths, the aged, women and children armed with lethal weapons arrived at Tezu Police Station and broke opened the Under Trial Prisoners (UTP) Cell and took away 2 (two) UTPs namely Shri Sanjay Sabor and Shri Jagdish Lohar, who were detained in the Lock Up in connection with Tezu Police Station Case No. 20/2018 under Sections 302/376 IPC read with Section 6 of the POCSO Act. As a result, Tezu P.S. Case No. 22/2018 was registered as already indicated above.
7. On 03.07.2018, a WT message was sent by the Officer-in-Charge of Crime Branch, P.S(SIT)PHQ at Itanagar to the Superintendent of Police, Tezu requiring the accused petitioners to appear before the Officer-in-Charge, P.S (SIT)PHQ on 06.07.2018 at 10:00 hours in connection with Tezu P.S case No. 22/2018. The notice was sent under Section 41(A) of the Cr.P.C. Although the accused petitioners were ready to comply with the aforesaid notice but on 05.07.2018, the case I.O filed an application before the Chief Judicial Magistrate, Capital Complex at Yupia praying for issuance of NBWA against the accused petitioners. On the basis of the application, the Executive Magistrate, Yupia passed the impugned Order dated 06.07.2018, issuing NBWA against the accused petitioners in connection with Tezu P.S. Case No. 22/2018. The accused petitioners apprehending their arrest therefore, did not appear before the case I.O at Itanagar on 06.07.2018.
8. Appearing for the accused petitioners, Mr. C.W. Mantaw the learned counsel for the petitioners submit that the impugned order dated 06.07.2018 is void ab initio and a nullity in the eye of the Law, inasmuch as, an Executive Magistrate is not authorised and empowered to issue NBWA under the Cr.P.C. NBWA can only be issued by a Judicial Magistrate having the jurisdiction and the same cannot be exercised by an Executive Magistrate. Magistrates are conferred judicial powers under the statute, and the same cannot be derived
