At, High Court of Assam
By, THE HONOURABLE MR. JUSTICE H.N. SARMA
For the Appearing Parties: M.H. Rajborbhnyan, R. Dev, Advocates.
H.N. SARMA, J.
(1.) Heard Mr. Rajib Dev, learned counsel for the petitioner.
(2.) The petitioner, challenging the impugned order dated 12.7.10 and 6.8.10 passed by the learned Addl. CJM, Golaghat in GR Case No. 700/09 (corresponding Dergaon PS Case No. 76/09) directing to issue
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NBWA against the petitioner, has preferred this application under Section 482 CrPC.(3.) On the basis of an FIR lodged by one Tomir Ahmed for alleged commission of offence by the petitioner under Section 366 (A)/368 IPC a complaint case being CR No. 1956/09 was filed in the Court of learned CJM, Golaghat and the same was forwarded to the O/C Dergaon for necessary invest-igation and registration of the case as Dergaon PS case. Accordingly, the case was registered as Dergaon PS Case No. 76/09 under Section 366(A) IPC and after completion of the enquiry the I.O. having found prima facie case, submitted the charge sheet against the petitioner under Section 366A IPC showing the petitioner as absconder. The charge sheet was drawn on 31.5.10 being charge sheet No. 34/10 and the same was transferred to the learned Addl. CJM for necessary disposal on 12.7.10 when on the first day, the learned Addl. CJM passed an order directing to issue NBWA against the petitioner. In the aforesaid order it is not disclosed that the petitioner was absconder. Without following the procedure prescribed under Section 82/83 CrPC and in compliance of the provision of law as laid down in the case of Nazrul Islam Vs. State of Assam and Ors. reported in 2008 (1) GLT 979, it appears that the learned CJM hold to issue NBWA against the petitioner as the petitioner was described as absconder by the I.O. It is needless to reiterate that a police officer has no authority under the law to declare a person absconder. It is the judicial Court who can only pass an order as absconder but that does not reflect in the order. On 6.8.10 again such direction to issue NBWA was issued to the petitioner fixing the case on 31.8.10.(4.) The learned counsel for the petitioner submits that the petitioner shall appear before the learned Addl. CJM, Golaghat in connection with the aforesaid case within a period of ten days from today.(5.) After hearing the learned counsel for the petitioner as well as the learned Addl. P.P., Assam, Mr. Munir and in view of the aforesaid discussion, this criminal petition stands disposed of with the direction that the petitioner shall cause his appearance before the learned trial Court in connection with the aforesaid case within a period of ten days from today as assured and apply for regular bail and in the event of such appearance and filing an application for bail, the learned Addl. CJM, Golaghat shall consider the same and pass appropriate order the law and facts.(6.) For the aforesaid period of ten days, in the event of issuance of NBWA in terms of the impugned order, the same shall be treated as bailable warrant of Rs. 20,000/-
"2011 (1) GauLT 561"