Gauhati High Court
Page No.# 1/7 vs The State Of Assam And 3 Ors on 17 March, 2025
Page No.# 1/7
GAHC010274222024
2025:GAU-AS:2794
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1594/2024
ANIL KUMAR RABHA
SON OF LATE ADHIR CHANDRA RABHA, RESIDENT OF HOUSE NO. 60,
K.K. ROAD, CHENIKUTHI HILLSIDE, P.O. SILPUKHURI, GUWAHATI,
DISTRICT- KAMRUP (METRO), ASSAM, PIN- 781003
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:MRS. RENBENI LOTHA CHOUDHURY
WIFE OF SRI P.N. CHOUDHURY
RESIDENT OF CASA REPOSE
CHITRACHAL HILL
V.P.O. KHARGHULI
GUWAHATI
DISTRICT- KAMRUP (METRO)
ASSAM
PIN- 781003
3:STATE BANK OF INDIA
NEW GUWAHATI BRANCH
BAMUNIMAIDAN REPRESENTED BY ITS BRANCH MANAGER
BAMUNIMAIDAN
NEW GUWAHATI
DISTRICT- KAMRUP (METRO)
ASSAM
PIN- 781021
4:VIJAYA BANK (ERSTWHILE)
SILPUKHURI BRANCH
PRESENTLY
Page No.# 2/7
BANK OF BARODA (SINCE 1.4.2019)
SILPUKHURI BRANCH
REPRESENTED BY ITS BRANCH MANAGER NO. 76 1ST FLOOR
ANNAPURNA COMPLEX
NABAGRAHA ROAD
SILPUKHURI
GUWAHATI
ASSAM
PIN- 78100
Advocate for the Petitioner : MR R CHAKRAVORTY, R BASUMATARY,S RABHA
Advocate for the Respondent : PP, ASSAM, MR A KHANIKAR (R-3)
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 17.03.2025 Heard Mr. R. Chakravorty, learned counsel for the petitioner. Also heard Ms. S. Sharma, learned counsel for the respondent No. 2; Mr. A. Khanikar, learned counsel for the respondent No. 3; and Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent No. 1.
2. This is an application under Section 528 read with Section 442 of BNSS, 2023 praying for quashment of the impugned Order dated 18.01.2024, passed by the learned Additional Chief Judicial Magistrate, Kamrup (M), Guwahati in Page No.# 3/7 Petition No. 5715 in C.R. Case No. 1436/2018.
3. It is submitted by Mr. Chakravorty, learned counsel for the petitioner, that the present petitioner was regularly appearing before the learned Trial Court below, but due to Covid-19 pandemic as well as for Kidney Transplant Operation of his daughter, he could not appear before the learned Trial Court below on some occasion and for which, NBWA was issued against him. However, he subsequently appeared before the learned Trial Court below and the NBWA was accordingly recalled and he was allowed to go on bail. But, during his absence, a petition was filed before the learned Trial Court below under Section 102 Cr.P.C. for seizure and freezing of his 2 (two) bank accounts. Thereafter, the learned Trial Court below, considering the prayer of the complainant, had freezed both the bank accounts, namely, SBI (Bamunimaidan Branch) A/C No. 10567107604, which is his pension account, and another account of Vijaya Bank (Silpukhuri Branch) bearing A/C No. 801101011000864. Further he submitted that the learned Trial Court below, in its impugned Order dated 18.01.2024, had observed that the accused/ petitioner was willfully absconding from 2 (two) N.I. Cases pending against him and hence, considering the prayer of the complainant, the learned Trial Court below had freezed the 2 (two) bank accounts of the petitioner, as stated above.
4. He further submitted that as per Section 102(1) Cr.P.C., the police officer may seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of commission of any offence. But, in the present case, there is no question of stolen of property etc. nor there is any commission of offence as described in Page No.# 4/7 Section 102 Cr.P.C. and thus, he submitted that Section 102(1) Cr.P.C. is not at all applicable in the cases of N.I. Act. More so, the Court took all the measures to procure the attendance of the present petitioner and subsequently he was enlarged on bail and now he is regularly appearing before the learned Trial Court below. Further he submitted that due to the freezing of his SBI Bank Account, the petitioner is not getting his pension for last 1 (one) year and he has no other source of income to sustain his livelihood and as such, he prayed that the impugned order dated 18.01.2024, passed by the learned Additional Chief Judicial Magistrate, Kamrup(M) in Petition No. 5715 in C.R. Case No. 1436/2018, along with a prayer for defreezing the aforesaid Bank Accounts of the present petitioner.
5. Ms. Sharma, learned counsel for the respondent No. 2, submitted in this regard that the order of freezing the bank accounts of the present petitioner had to be passed by the learned Trial Court below as the accused/petitioner was absconding for last 3 (three) years and the case is pending since the year 2017 and on 17 dates, he remained absent and for which, the NBWA as well as the P&A had to be issued against him. She further submitted that the petitioner had already admitted his dues before the Court and in pursuant to that he has already paid altogether Rs. 25,000/- before the Court and during the pendency of the present case, i.e. C.R. Case No. 1436/2018, he also presented a cheque before the Court to clear his dues, but subsequently he stop the payment of cheque and for which, another N.I. case had to be instituted against him, being C.R. Case No. 748/2020. So, considering his conduct and willful absence, the Court had to pass a strict order for freezing his bank accounts only to procure his attendance. She further submitted that if there is an order for defreezing the Page No.# 5/7 said bank accounts, the petitioner may be directed to deposit some amount of money before the Court so as to procure his attendance.
6. In this context, Mr. Chakravorty, learned counsel for the petitioner, raised objection and submitted that the petitioner never absent for 17 times in the Court and though he may not be physical present before the Court on some occasion, but he was duly represented by his engaged counsel. More so, the petitioner has never admitted his dues and the matter is under trial and hence, he submitted that such kind of order for depositing money before the Court may not be passed at this stage.
7. Mr. Khanikar, learned counsel for the respondent No. 3/State Bank of India, submitted that the SBI A/C No. 10567107604 pertains to the pension account of the present petitioner and hence the Court may pass necessary order accordingly.
8. After hearing the submissions made by learned counsels appearing on behalf of the parties and also on perusal of the case record as well as the annexures filed along with the petition including the Order Sheets of the learned Trial Court below, it is seen that admittedly the case is pending since long and on several occasion, the accused/petitioner remain absent with steps and in the same time, it is also seen that on some occasion, the complainant also remain absent, but, considering his long absence in the Court, the learned Trial Court below had to issue the NBWA and P&A against the present petitioner. However, at present, after he surrendered before the learned Trial Court below, his NBWA has already been recalled and he is regularly appearing before the learned Trial Page No.# 6/7 Court below. It also cannot be denied that Section 102 Cr.P.C. is not directly applicable in the case of N.I. Act wherein the police was provided with the power for seizure of property as envisaged under Section 102(1) Cr.P.C. However, the Court had to pass such kind of order only to procure the attendance of the present petitioner and at present, it is seen that the accused already surrendered before the Court and accordingly he is appearing before the learned Trial Court below.
9. Coming to the issue raised by Ms. Sharma, learned counsel for the respondent No. 2, that there has to be an order for depositing some amount of money before the Court, it is seen that the trial is still going on and hence, such kind of order cannot be considered at this stage and it is the matter of trial as to whether there is any legally enforceable debt against the present petitioner.
10. Thus, in view of the above discussion and also considering all other aspects of the case, this Court is of the opinion that the petitioner has made out a case requiring interference of this Court in the impugned order passed by the learned Trial Court below. Accordingly, the petition stands allowed. The impugned Order dated 18.01.2024, passed by the learned Additional Chief Judicial Magistrate, Kamrup (M), Guwahati in Petition No. 5715 in C.R. Case No. 1436/2018, stands set aside. The Bank Authorities, more particularly, the State Bank of India, Bamunimaidan Branch as well as the Vijaya Bank, Silpukhuri Branch, are hereby directed to defreeze the accounts of the present petitioner which were directed to be freezed vide order dated 18.01.2024.
11. However, the petitioner is hereby directed to appear before the learned Trial Court below on each and every date to be fixed by the learned Trial Court Page No.# 7/7 below. Further, the learned Trial Court below shall also make an endeavour to dispose of the matter as expeditiously as possible.
12. In terms of above, this criminal petition stands disposed of.
JUDGE Comparing Assistant