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Judgment
T.C. Das, J.—Personal liberty of a citizen is a cherished liberty guaranteed in, the provisions of the Constitution of India which should be curtailed except for the necessity where the authority sells that liberty of a citizen should be restrained under un-avoidable circumstances. Here is a case where that personal liberty of a citizen who is the Petitioner in this revision Petitioner on was illegally curtailed by unholy action of a Chief Judicial magistrate in issuing a warrant of arrest against the Petitioner the beginning of a proceeding u/s 125 Code of Criminal Procedure.
At the time of admission of this revision application, this Court asked for a report from the Chief Judicial Magistrate and directed him to send a true copy of the entire order sheet. In compliance to that, the learned Magistrate has Submitted his report. In the report the learned Magistrate stated as under:
In this connection I beg to state that the fact of arrest and release of the Petitioner-opposite party came to my notice after receipt of the Hon''ble Courts Order under deference. Then on perusal of the records, I found that no order for issue of Warrant of Arrest and Proclamation and Attachment was passed in the order sheet of the case, But it was found that the Opposite Party was produced before me at my residence by the police along with other police papers on 14.9.79.... The police produced the Opposite-party Under arrest maintaining a separate order sheet which was sent to this Court along with other connected papers long after. The Beach Assistant kept these papers in the record. I did not get the opportunity to go through the original record on 14.9.79 as the court was closed due to picketing as stated above. I further found the there was no order for issue of Warrant of Arrest and Proclamation Attachment against the Opposite-party in the order sheets of the main record. But the Warrant of Arrest and Proclamation and Attachment was sent front my court under my signature which I could not scrutinize due to heavy pressure of work occasioned due to irregular functioning of court and consequent accumulation of heaps of various nature of processes; and other works....
If no order was passed by the Court, how a warrant of arrest and a proclamation for attachment of the property could be issued under the signature of the Magistrate concerned? Is it not the duty of the Magistrate to verify the papers, orders etc. before be puts his signatures of those papers and the order sheet? The warrant of arrest and proclamation of attachment was issued under the signature of the learned Magistrate, It has been clearly written in the proclamation as regards the proceeding in connection of which this win issued. Furthermore, on bare perusal of the order sheet it appears that the safe was just started on filing of a petition by the opposite party u/s 125 Code of Criminal Procedure and a notice was also issued upon the Petitioner to show cause as to why an appropriate order should not be rendered on the said application of the Opposite party. In pursuance of the notice, the Petitioner duly appeared. If that be the position, is it permissible under the law to issue warrant of arrest and the proclamation of attachment on a mere application u/s 125 Code of Criminal Procedure which was not finally deposed of by the Court. This sort of hasty action not warranted by law ought not to have been taken against the Petitioner. It is revealed from the order shut that he Petitioner appeared on 6.10.79 in Court and prayed for time to file objection.
I have perused the petition u/s 125 Code of Criminal Procedure oiled by the opposite party against this Petitioner which has been marked as Annexure ''I'' to this petition. It was prayed in the aid petition only for issue of notice upon the opposite party and on hearing the parties, to pass orders directing the opposite party, (Petitioner herein) to pay Rs. 250/- towards the female issue. The said application was tiled on 13.2.79. The opposite party herein did not make any prayer to the effect that non-boilable warrant should be issued against him. even at this stage. There is no order rendered by the Court. Now the warrant of arrest and proclamation of attachment notice could be served and/or issued against him (Petitioner)? The mystery lies somewhere else and it was the duty of the Magistrate concerned to inquire bow it could happen and under what circumstances. It was not done by the learned Magistrate. At-least I do not get any indication from the report dated 22nd March, 1980 to this effect. Neither any subsequent report has been sent to indicate what action has been taken against the person responsible to get the notice issued with the signature of the learned Magistrate even in absence of the order to that effect. This is really strange and unthinkable why such course was taken against the Petitioner and by whom? if this sort of action is taken without any legal sanction, will it not bung Sown the image of the institution which would be ultimately open to the public criticism? The action as has been taken against the Petitioner is likely to create an impression in the minds of the litigants that there is no rule of law and the civil liberty of a citizen would be jeopardised by an illegal action of the Court. Courts should not assume that they are above public criticism if illegality is committed being apparently unwarranted and without any authority of law. If such sort of action is taken, the image of the Court will be lost before the litigants. The citizen whose liberty is sought to be illegally curtailed without any authority of law would surely show disrespect to the Court and would lose faith upon the Court. this is not only intolerable but equally the action is unfair. Here is a case where the Petitioner had no other alternative than to put his grievance before this Court possibly, with a view to check any future illegal and unauthorised action of the courts below. The order rendered by the court must be within the jurisdiction and also in conformity with law. The grievance of the Petitioner appears to be genuine for which the Petitioner has prayed to quash the proclamation of attachment and also allow him to be discharged from his bail band.
On hearing. Mr. K. Sarma, learned Counsel for the Petitioner I am convinced. that the Petitioner has a most genuine case to ventilate his grievance for his redress While admitting the revision application on 10.3.80, this Court did not stay the further proceedings. On scrutiny of the records and on perusal of the records connected with the case I am satisfied that the proclamation of attachment must be quashed and the Petitioner should be discharged from his bail bond. It is, the fore, ordered that the Petitioner is hereby discharged from his bail bond and the proclamation of attachment of the property of the Petitioner is hereby quashed. The proceeding of the Case No. 13 (M) 79 pending in the Court of Chief Judicial Magistrate Dibrugarh shall however continue as usual.