Gauhati High Court
Page No.# 1/9 vs The State Of Assam on 4 August, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/9
GAHC010167622025
2025:GAU-AS:10189
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./930/2025
SHRI BALARAM MANDAL
S/O DHIREN MANDAL
RESIDENT OF VILLAGE BERADIA, PS MAYANG, PO KARATIPAM, DIST
MORIGAON, ASSAM, PIN 782105
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR A L MANDAL, MD. S ALOM
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT
Date : 04-08-2025
1. Heard Mr. A.L. Mandal, learned counsel for the petitioner and Mr. M.P.
Goswami, learned Additional Public Prosecutor for the respondent State of
Assam.
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2. Before any deliberation on the impugned orders, it is apposite to state the
background facts, in brief, at first. One Smti. Mamata Mandal was the informant
in the First Information Report [FIR] lodged before the Officer In-Charge,
Mayang Police Station on 05.12.2021 in connection with Mayang Police Station
Case no. 270/2021 registered under Sections 498A/494/34, Indian Penal Code
[IPC]. In the FIR, the petitioner herein was named as accused no. 1 and one
Smti. Sarmila Mandal was named as accused no. 2. It was inter alia alleged that
in an incident occurred on 31.10.2021, both the accused persons assaulted the
informant and drove her and her son, aged about 6 years, out of her
matrimonial house.
3. After investigation, the Investigating Officer [I.O.] of the case submitted a
charge-sheet vide Charge-Sheet no. 167/2021 on 26.12.2021. In the Charge-
Sheet, the petitioner was the only charge-sheeted accused and the I.O. stated
that there were sufficient materials against the petitioner to stand in the trial for
commission of the offences under Section 498A and Section 494 of the IPC. The
other accused person, Smti. Sarmila Mandal, named in the FIR, was not charge-
sheeted. The case was registered as Police Report Case [PRC] No. 233/2022.
4. When the case records of PRC No. 233/2022 was put up before the Court
of learned Sub-Divisional Judicial Magistrate [S], Morigaon [‘the Trial Court’, for
short] on 19.08.2023, the accused-petitioner was found absent. The Trial Court
recorded that the summons issued to the accused-petitioner had returned after
due service. On that day, that is, on 19.08.2023, a petition being Petition no.
2905/2023 was filed by the father of the accused-petitioner, namely, Shri Dhiren
Mandal stating that he had no communication with the accused-petitioner/his
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son for last about one year and eight months. The Trial Court having considered
the same, proceeded to issue non-bailable warrant of arrest [NBWA] against
the accused-petitioner.
5. On subsequent dates, 13.10.2023, 12.12.2023, 29.01.2024, 05.03.2024,
09.04.2024, 21.05.2024, 29.06.2024, 01.08.2024 and 20.09.2024, the Trial
Court recording absences of the accused-petitioner before it without steps,
ordered for issuance of fresh non-bailable warrants of arrest [NBWAs] against
the accused-petitioner.
6. When the case was posted on 06.11.2024, the Trial Court had passed the
following order :-
Accused Sri Baluram Mandal is absent without any steps.
I have gone through the record. It reveals from the case record, that several steps
were taken against the accused person. The report of NBWA issued against the
accused person returned with report, that the accused person is not found in the
given address and as per his family member, he left home about one and half year
ago.
Thus, considering the materials on record as well as the report submitted, accused
Baluram Mandal declared as proclaimed offender and the case is kept filed against
the accused person until his production on standing warrant of arrest.
Hence, issue standing warrant against the accused person Baluram Mandal. Mark a
copy to the concerned O/C.
7. Mr. Mandal, learned counsel appearing for the accused-petitioner has
submitted that the accused-petitioner is a daily labourer and in order to earn
livelihood, he had gone outside Assam during the relevant period. He has
further submitted that the father of the accused-petitioner vide Petition no.
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2905/2023 had brought the fact that the accused-petitioner was not residing
with them to the notice of the Trial Court on 19.08.2023. He has further
contended that in the above backdrop, issuance of non-bailable warrants of
arrest [NBWAs] by the Orders, under reference, was not proper on the part of
the Trial Court. He has further submitted that the accused-petitioner is accused
for committing the offences under Section 494, IPC and Section 498A, IPC and
for such offences, the accused-petitioner could not have been declared as a
proclaimed offender.
8. Mr. Goswami, learned Additional Public Prosecutor for the respondent,
State of Assam has submitted that there is no infirmity in the Order date
19.08.2023 as the summons issued to the accused-petitioner had returned after
due service. He has submitted that there is no infirmity in the subsequent
orders.
9. Section 64 of the Code of Criminal Procedure, 1973 [CrPC]/Section 66 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 [BNSS] has provided for service
of summons when a person summoned cannot be found. It has been provided
that where the person summoned cannot, by the exercise of due diligence, be
found, the summons may be served by leaving one of the duplicates for him
with some adult male member/adult member of his family residing with him,
and the person with whom the summons is so left shall, if so required by the
serving officer, sign a receipt therefor on the back of the other duplicate. From
the aforesaid provision, it emerges that in the event the person summoned
cannot be found despite exercise of due diligence, the summons may be served
by leaving one of the duplicates for him with some adult male member/adult
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member of his family residing with him.
10. In the case in hand, the first condition of serving the summons upon one
adult male member/adult member of the petitioner’s family is found to be
fulfilled as it was the father of the accused-petitioner to whom the summons
meant for the accused-petitioner was served. The father of the petitioner upon
whom the summons was served, had thereafter, approached the Trial Court by
Petition no. 2905/2023 stating that he had no communication with his son, that
is, the accused-petitioner for a period of last one year and eight months,
meaning thereby, the accused-petitioner was not residing with his father at the
address where the summons was served.
11. In view of such fact brought to the notice of the Court, it cannot be said
that there is fulfillment of the second requirement stipulated in Section 64,
CrPC/Section 66, BNSS that the adult male member/adult member of the
petitioner’s family to whom the summons had been delivered, was one who had
been residing with the accused-petitioner at the time when the summons were
found to be served. There appears to be no endeavour on the part of the Trial
Court to ascertain the correctness of the fact asserted in Petition no. 2905/2023
whether the accused-petitioner at the relevant point of time was residing with
his father or not. The Trial Court did not record any finding contrary to the
statement made by the father of the accused-petitioner in Petition no.
2905/2023.
12. Section 82, CrPC/Section 84, BNSS has provided for proclamation for
person absconding. Sub-section [4] of Section 84, BNSS has provided as
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under :-
Section 84[4] – Where a proclamation published under sub-section [1] is in respect
of a person accused of an offence which is made punishable with imprisonment of
ten years or more, or imprisonment for life or with death under the Bharatiya Nyaya
Sanhita, 2023 or under any other law for the time being in force, and such person
fails to appear at the specified place and time required by the proclamation, the
Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed
offender and make a declaration to that effect.
13. The petitioner is likely to face charges under Section 494, IPC and Section
498A, IPC in the proceedings of PRC No. 233/2022. If a person is found guilty of
the offence under Section 494, IPC, the convict can be punished with
imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine. A person held guilty of the offence under Section
498A, IPC, can be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine.
14. In the context of the provisions contained in Section 82, CrPC/Section 84,
BNSS, the accused-petitioner is likely to face the charges under Section 494, IPC
and Section 498A, IPC could not have been declared as a proclaimed offender.
15. In Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and another,
the Hon’ble Supreme Court of India has observed as under :-
9. It needs little emphasis that since the execution of a non-bailable warrant directly
involves curtailment of liberty of a person, warrant of arrest cannot be issued
mechanically, but only after recording satisfaction that in the facts and
circumstances of the case, it is warranted. The Courts have to be extra-cautious
and careful while directing issue of non-bailable warrant, else a wrongful detention
Page No.# 7/9would amount to denial of constitutional mandate envisaged in Article 21 of the
Constitution of India. At the same time, there is no gainsaying that the welfare of an
individual must yield to that of the community. Therefore, in order to maintain rule of
law and to keep the society in functional harmony, it is necessary to strike a balance
between an individual’s rights, liberties and privileges on the one hand, and the
State on the other. Indeed, it is a complex exercise. As Justice Cardozo puts it ‘on
the one side is the social need that crime shall be repressed. On the other, the
social need that law shall not be flouted by the insolence of office. There are
dangers in any choice.’ Be that as it may, it is for the court, which is clothed with the
discretion to determine whether the presence of an accused can be secured by a
bailable or non-bailable warrant, to strike the balance between the need of law
enforcement on the one hand and the protection of the citizen from highhandedness
at the hands of the law enforcement agencies on the other. The power and
jurisdiction of the court to issue appropriate warrant against an accused on his
failure to attend the court on the date of hearing of the matter cannot be disputed.
Nevertheless, such power has to be exercised judiciously and not arbitrarily, having
regard, inter-alia, to the nature and seriousness of the offence involved; the past
conduct of the accused; his age and the possibility of his absconding.
10. In Inder Mohan Goswami & Another Vs. State of Uttaranchal & Others, a Bench of
three learned Judges of this Court cautioned that before issuing non-bailable
warrants, the Courts should strike a balance between societal interests and
personal liberty and exercise its discretion cautiously. Enumerating some of the
circumstances which the Court should bear in mind while issuing non-bailable
warrant, it was observed:
“53. Non-bailable warrant should be issued to bring a person to court when
summons or bailable warrants would be unlikely to have the desired result. This
could be when:
· it is reasonable to believe that the person will not voluntarily appear in
court; or
· the police authorities are unable to find the person to serve him with a
summon; or
· it is considered that the person could harm someone if not placed into
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54. As far as possible, if the court is of the opinion that a summon will suffice in
getting the appearance of the accused in the court, the summon or the bailable
warrants should be preferred. The warrants either bailable or non-bailable should
never be issued without proper scrutiny of facts and complete application of
mind, due to the extremely serious consequences and ramifications which ensue
on issuance of warrants. The court must very carefully examine whether the
criminal complaint or FIR has not been filed with an oblique motive.
55. In complaint cases, at the first instance, the court should direct serving of the
summons along with the copy of the complaint. If the accused seem to be
avoiding the summons, the court, in the second instance should issue bailable
warrant. In the third instance, when the court is fully satisfied that the accused is
avoiding the court’s proceeding intentionally, the process of issuance of the non-
bailable warrant should be resorted to. Personal liberty is paramount, therefore,
we caution courts at the first and second instance to refrain from issuing non-
bailable warrants.”
16. Since these directions flow from the right to life and personal liberty,
enshrined in Articles 21 and 22[1] of the Constitution, they need to be strictly
complied with.
17. In the light of the discussion made above, the Order dated 19.08.2023
passed in connection with PRC Case no. 233/2022 and all subsequent orders of
non-bailable warrant of arrest [NBWA] against the accused-petitioner passed by
the Trial Court, are found to be made without due reference to the relevant
factors. Similarly, the Order dated 06.11.2024 whereby the accused-petitioner
has been declared as a proclaimed offender, is found unsustainable in law. As a
result, all the orders are liable to be set aside. It is accordingly ordered.
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18. Since the accused-petitioner has submitted that he is ready and willing to
appear before the Trial Court, this Court deems it fit and proper to allow the
accused-petitioner to appear before the Trial Court on or before 31.08.2025 and
to prefer appropriate application for his release on bail. It is further observed
that if such an application is filed, the Trial Court shall consider the same on its
own merits and in accordance with law.
19. The instant criminal petition stands disposed of in the aforesaid terms. No
cost.
JUDGE
Comparing Assistant