SIRAJ ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE facts, giving rise to the present revision, may, in brief, be noted as follows:-

(2.) IT is the backdrop of the above facts and circumstances that the present criminal petition needs to be disposed of.

(3.) SINCE neither it is possible nor desirable that this Court, in this criminal petition, determines the question as to whether the petitioners had really appeared, in the court of the learned SDJM, on 18. 4. 2006, or not, this criminal petition needs to be disposed of on merit. Hence, without giving a clear finding as to whether or not the report, submitted by the learned SDJM, is true or not, let me, now, deal with the criminal petition on merit and this brings me to the order, dated 4. 6. 2004, whereby, I notice, warrants of arrest were directed to be issued against the accused-petitioners. In this order, the learned SDJM has assigned no reason whatsoever for directing issuance of the warrants of arrest against the petitioners. This order merely states that the warrants of arrest be issued against the absconding accused. It may, at this stage, be pointed out that issue of warrant of arrest is a momentus order, for, such an order affects the liberty of the person against whom the warrant is issued and, hence, no direction to issue warrant of arrest can be passed mechanically and unless the Magistrate is satisfied, on perusal of the relevant materials in the case diary, that the accused had really absconded as reflected in the charge-sheet. No such satisfaction has been recorded by the learned SDJM in the order, dated 4. 6. 2006, aforementioned. In fact, the order, passed on 4. 6. 2004, and the orders, passed subsequent thereto, clearly show that the learned SDJM did not even peruse the case diary before directing issuance of warrants of arrest against the accused-petitioners. Similarly, the learned SDJM has directed issuance of Proclamation and Attachment against the accused-petitioners by order, dated 4. 2. 2005. No reason has, however, been assigned as to why Proclamation and Attachment were directed to be issued against the accused-petitioners. One has to bear in mind that there lies a difference between an investigating agency treating an accused as absconder and a Magistrate coming to a clear finding as to whether the accused has really absconded or not. Unless such a clear finding is reached by the Magistrate, the accused cannot, and must not, be labelled as absconder by the Magistrate.