Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 8 January, 2026
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/5
GAHC010002942026
2026:GAU-AS:344
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./16/2026
ARUN MAJI
S/O BIBHUTI MAJI, R/O BALLUK, P.S. TAMULUK, DIST. PURBA
MEDINIPARA, PIN 721137, WEST BENGAL.
VERSUS
THE STATE OF ASSAM
(BIEO), REPRESENTED BY PP, ASSAM.
Advocate for the Petitioner : MR. S C BISWAS, MR. MEHUL SHAH,MS. S. CHANDA,MR. F A
HASSAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
08.01.2026 Heard Mr. S.C. Biswas, learned counsel for the petitioner and Mr. M.P. Goswami, learned Additional Public Prosecutor, Assam for the respondent State.
2. On the basis of a First Information Report [FIR] lodged by five nos. of persons before Page No.# 2/5 the Additional Superintendent of Police, Economic Offence Investigation Branch, Assam, Guwahati, the same was registered as General Diary Entry no. 193 dated 22.05.2014 at first and thereafter, as BIEO Police Station Case no. 14/2014 under Sections 120B/420/406 of the Indian Penal Code [IPC] r/w Sections 4, 5 & 6 of the Prize Chits and Money Circulation Schemes [Banning] Act, 1978 ['the PC&MCS(B) Act', for short] and Section 5 of the Assam Protection of Interests of Depositors Act, 2013 ['the APID Act', for short.
3. Upon completion of investigation, a charge-sheet under Section 173[2], Code of Criminal Procedure [CrPC] was submitted vide Charge-Sheet no. 30/2019 on 27.12.2019 finding a prima facie case established for commission of various offences against five nos. of accused persons including the petitioner. In the Charge-Sheet, the petitioner was mentioned as accused no. 5 [A-5]. It is mentioned in the Charge-Sheet that a prima facie case was found established for the offences under Sections 120B/420/406, IPC r/w Sections 4, 5 & 6 of the PC&MCS(B) Act and Section 5 of the APID Act against the five charge-sheeted accused persons. The I.O. further mentioned that the petitioner was found to be absconding during the period of investigation.
4. On submission of the Charge-Sheet, the case has been registered as P.R. Case no. 84/2020. The Court of learned Chief Judicial Magistrate, Kamrup [M], Guwahati ['the Trial Court', for short] took cognizance against five charge-sheeted accused persons. Out of the five charge-sheeted accused persons, two were on previous bail and one was on pre-arrest bail. The Trial Court, on 10.01.2020, issued summons to all the five accused persons for their appearance.
5. During the period from 10.01.2020 till 20.01.2023, the Trial Court continued to issue process [summons] to the petitioner [A-5] for his appearance. In the meantime, one of the charge-sheeted accused persons [A-1] died and the proceedings stood abated against A-1. On 20.01.2023, the Trial Court observed that summons issued to the petitioner was not returned and ordered for issuance of fresh summons to the petitioner. Similar orders were passed till 28.04.2023.
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6. On 28.04.2023, the Trial Court recorded that the summons issued to the two accused persons, namely, Arup Kumar Dey [A-4] and the petitioner [A-5] returned with a report that they were no longer available in the given addresses. The Trial Court recorded to the effect that both of them were shown as absconders in the Charge-Sheet by the I.O and the report mentioned that they could not be traced out in the given addresses. The Trial Court formed a view that the said two accused persons had been evading the process of the trial and observed that to ensure their appearance, it would be deemed fit to issue order of Proclamation & Attachment [P&A] against two of them with a direction to the Officer In- Charge of the jurisdictional Police Station to execute the same. It was the Officer In-Charge, Barasat Police Station, West Bengal who would execute the same.
7. By the Order dated 28.04.2023, the proceedings of P.R. Case no. 84/2020 was also split up against the two allegedly absconding charge-sheeted accused persons.
8. From the Order-Sheet of P.R. Case no. 84/2020, annexed to the criminal petition, it is evident that the Trial Court, at first, issued summons for securing appearance of the petitioner who has been charge-sheeted as A-5. No warrant of arrest [NBWA] was issued against the petitioner prior to 28.04.2023. It was only on 07.01.2025, a warrant of arrest [NBWA] was ordered against the petitioner while retaining the order for Proclamation & Attachment [P&A].
9. In so far as issuance of warrant of arrest [NBWA] is concerned, the Court is to be guided by the parameters set forth in Section 84 and Section 90 of the BNSS, 2023 which provisions are similar to the provisions of Section 82 and Section 87 of the CrPC, 1973. The provisions for publication of written proclamation in respect of a person absconding are contained in Section 84 of the BNSS and Section 82, CrPC.
10. The condition precedent for initiation of an action under Section 84, BNSS or Section 83, CrPC is prior issuance of warrant of arrest by the concerned Court. A plain reading of Section 84[1], BNSS shows that before ordering for publication of a proclamation, the Court should have reasons to believe [whether after taking evidence or not] that a person against Page No.# 4/5 whom warrant was issued has absconded or is concealing himself and that the warrant cannot be executed. Proclamation under Section 84, BNSS or Section 83, CrPC may be issued only when a Court has reason to believe that a person against whom warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed. It is only after arriving at such satisfaction, the Court may proceed to publish a written proclamation. The satisfaction could be subjective but it cannot be without any material basis. Only after recording such satisfaction, the Court can direct publication of a written proclamation requiring such person to appear at a specified place within a specified period. It has been observed in Srikant Upadhyay and others vs. State of Bihar, [2024] SCC OnLine SC 282, that to reach a satisfaction that a person is absconding, evidence is required to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. Such evidence was apparently missing before the Court on 28.04.2023 to reach a satisfaction that the petitioner was absconding despite knowing about the pendency of warrant of arrest. It was not permissible for the Trial Court to issue proclamation against the petitioner without issuing warrant of arrest first and as such, the order of publication of proclamation under Section 84, BNSS or Section 82, CrPC is contrary to the mandate of law rendering it unsustainable in law.
11. In the case in hand, the Trial Court only after taking recourse to the provisions relating to Proclamation & Attachment [P&A] had issued warrant of arrest [NBWA] against the petitioner to secure his appearance.
12. It is a settled proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. If an order at the initial stage, like the order dated 28.04.2023, is bad in law, then all further and other orders, consequent thereto, have to be necessarily set aside. In the above backdrop, this Court finds applicability of the legal maxim, Sublato Fundamento Cadit Opus in the case. The legal maxim, Sublato Fundamento Cadit Opus means that if the foundation stands removed, structure falls and it applies on all scores in the present case.
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13. Mr. Biswas, learned counsel for the petitioner has submitted that the next date of posting of P.R. Case no. 84/2020 case is 13.03.2026 and the petitioner will appear before the Trial Court without fail on or before 13.03.2026.
14. Mr. Goswami, learned Additional Public Prosecutor has submitted that appearance of the petitioner in the trial of P.R. Case no. 84/2020 would facilitate an expeditious conclusion of the trial.
15. In view of the reasons recorded regarding infirmity of the order issuing Proclamation & Attachment [P&A] followed by orders issuing warrant of arrest [NBWA] against the petitioner, the order dated 28.04.2023 and other subsequent orders issued in so far as the petitioner is concerned regarding his appearance, are quashed and set aside.
16. In view of quashing and setting aside of the afore-stated Order, the petitioner is now required to respond to the summons issued to him by the Trial Court on or before 13.03.2026. The petitioner shall appear before the Trial Court on or before 13.03.2026, as he has himself undertaken. If upon such appearance, the petitioner files any application before the Trial Court seeking his release on bail, the Trial Court is to consider the same on its own merits and in accordance with law. It is due to non-appearance of the petitioner in the trial of P.R. Case no. 84/2020, the trial has got prolonged and protracted. It is, therefore, observed that in the event the petitioner makes any default to appear before the Trial Court after 13.03.2026, the Trial Court would be at liberty to pass appropriate order to secure his appearance.
17. This order disposes of the criminal petition.
JUDGE Comparing Assistant