Point of Law: Cancellation of NBW - Object behind issuing NBWA against the petitioners is no longer surviving now. Since prosecution report is submitted, and since trial already started

JUDGMENT :

ROBIN PHUKAN, J.

1. This petition, under Section 397, read with Section 401 and 482 of the Cr.P.C. is preferred by the petitioners, namely, Ali Akbar Seikh and Hussain Ali S/o Kuddus Ali of Nilibari, P.S. Dhaligaon challenging the legality, propriety and correctness of the impugned judgment and order dated 30.04.2021 passed by the learned Sessions Judge, Bongaigaon in Criminal Revision Petition No. 1/2021 and the order dated 25.11.2020, passed by the Special Railway Magistrate, Bongaigaon in RPF/POST/NBQ/1(2) of 2020.

2. It is to be mentioned here that vide the impugned order dated 25.11.2020, the ld. Special Railway Magistrate, Bongaigaon has issued Non Bailable Warrant of Arrest (hereinafter, ‘NBWA’) against the petitioners and vide the impugned judgment and order dated 30.04.2021, the learned Sessions Judge, Bongaigaon has dismissed the prayer for setting aside order dated 25.11.2020, in the Criminal Revision Petition No. 1/2021 preferred by the petitioners.

3. The factual background leading to filing of this petition before this Court is adumbrated herein-below:

“On the night of 31.01.2020/01.02.2020, ASI Sohan Lal Pradhan, along with some RPF personnel of RFP/Post/NBQ (Special Team/NBQ) conducted checking over NBQ Railway station premises against the offenders of Railway Act and other anti social activities from 20.20 hrs of 31.01.2020 onward. In course of Checking, while they were near check Gate No. NN-15(A), they have found 4 to 5 persons carrying drums and some of them were escaping nearby fueling point of NBQ station towards BNGN end near Kendriya Vidyalaya (Central School) at about 01.05 hrs, dated 01.02.2020. Then, they noticed that the said persons were filling diesel into the drums from fueling point by opening the valve/lock and the loaded drums, and carrying and loading the same into a four wheeler vehicle place on the road, which is near the waiting booth, from where they were stealing HSD oil. Then, RPF team surrounded them to apprehend at the spot. But, they managed to escape leaving 3 Nos. loaded drums and 16 Nos. empty drums, one slide wrench and one four wheeler vehicle bearing Registration No. AS-26-C-5924 (Mahindra Bolero Pick up), taking the advantage of the darkness. But, they have been able to apprehend one culprit on the spot and recovered 150 ltrs. of HSD Oil and value of the same was Rs. 10,350/-. The apprehended accused introduced himself as Anowar Hussain during interrogation. The vehicle and the drums were seized later on and thereafter, ASI Sohan Lal Pradhan lodged one formal complaint on the basis of which, PC/RPF/NBQ registered a case, being Case No. 1(2)2020, under Section 3 (a) RP Act dated 01.02.2020. During enquiry arrested accused Anowar Hussain, revealed on interrogation, that Husain Ali, Ali Akbar @ Gutu, Amar Ali, Kutubuddin Seikh @ Kutu, Aajijul Houqe were involved in stealing HSD Oil. During investigation, it was also found that the seized HSD oil was used in railway locomotive. Thereafter, he conducted several raid and search and ambush to arrest the absconding accused. But, the accused persons namely, Anowar Hussain, Husain Ali, Ali Akbar @ Gutu, Amar Ali, Kutubuddin Seikh @ Kutu, Aajijul Houqe evaded arrest. Then on 31.10.2020, he with the help of local police conducted raid and search at Nilibari area, but could not arrest the accused persons as the people of the locality obstructed them in performing their lawfully duty. Thereafter, he prayed before the learned Special Judicial Magistrate for issuing non-bailable warrant of arrest and accordingly, the learned Court below vide impugned order dated 25-11-2020, allowed his prayer and issued NBWA against the petitioners, namely, Ali Akbar Seikh and Hussain Ali. Then, being highly aggrieved, petitioners preferred a revision petition before the learned Sessions Judge, Bongaigaon. Then, after hearing both the parties, the learned Sessions Judge, Bongaigaon has dismissed the revision petition vide the impugned judgment and order