Page No.# 1/3 GAHC010271052024 2025:GAU-AS:750 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1585/2024 MITHUN ALI @ REZAUL HOQUE S/O LT. NAZIR HUSSAIN R/OVILL- SALMARA PT.III P.O. BONDIHANA P.S. FAKIRGANJ DIST. DHUBRI, ASSAM PIN-783330 VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY THE LEARNED PP, ASSAM 2:JOMSER ALI S/O LT. SAHAR ALI VILL- SALMARA PT.III P.O. BONDIHAHA P.S. FAKIRGANJ DIST. DHUBRI ASSAM PIN-78333 Advocate for the Petitioner : MR. M R KHANDAKAR, MR. A ROHMAN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER Date : 24.01.2025 1. Heard Mr. M.R. Khandakar, learned counsel for the petitioner. Page No.# 2/3 Also heard Mr. P Borthakur, learned Addl. PP, Assam. 2. By this application filed under section 528 of BNSS, 2023, the petitioner has prayed for quashing the impugned order dated 29.10.2024 passed in PRC Case No.2805/2022 in reference to Fakirganj PS Case No.153/2009 (GR No.(Fkg) 153/2009 under section 366(A)/370/34 IPC, whereby the learned Judicial Magistrate First Class, Dhubri, issued NBWA against the accused petitioner. 3. After completion of the investigation, the investigating authority filed charge sheet. It is the case of the petitioner that he was not aware of such case and he was not searched by police at any point of time. He is a daily wage earner and he was out of residence for a long time. 4. In the aforesaid backdrop, though summons were issued to him, but such summons were never served upon him his cousin brother received the summon and he was not intimated about the same. Accordingly NBWA was issued by the learned trial court below vide order dated 29.10.2024 against the accused petitioner. 5. It is the case of the petitioner that he has not avoided any investigation or trial on his own volition, however, due to his stay outside his residence for a long time, he was not aware of such fact, however, now he has come to learn about the present proceeding and he is willing to participate in the proceeding being a law abiding citizen. 6. Accordingly, the present application is filed for recall of the order. 7. This court is of the view that all these pleas that the petitioner was not available and he has not willfully absented himself from the trial or investigation can be taken note of by the learned trial court, if the petitioner approaches the learned trial court giving his explanation. 8. Therefore, this court is of the view that ends of justice would be met if the matter is relegated back to the learned trial court below to Page No.# 3/3 consider the case of the petitioner and to pass necessary orders. 9. Accordingly the present petition stands closed by relegating the petitioner to approach the learned trial court below seeking recall of the order dated 29.10.2024 issuing NBWA. 10. The petitioner shall appear before the learned court below within a period of 7 days from today. If the petitioner appears and files an application within the next 7 days, the NBWA issued against him shall remain suspended till decision of the learned trial court. However, if the petitioner does not appear and no application is filed within the next 7 days, the operation of the NBWA shall remain in force. 11. If such application is filed, the learned trial court shall consider the same on its own merits without being influenced by any of the observations made in the order. 12. With the aforesaid, the present petition stands allowed. JUDGE Comparing Assistant