Gauhati High Court

Page No.# 1/8 vs The State Of Assam And Anr on 1 April, 2025

                                                                        Page No.# 1/8

GAHC010045902025




                                                                  2025:GAU-AS:3830

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Bail Appln./819/2025

            SAMINDRA PATHAK @ SOMENDRA PATHAK
            SON OF LATE DHANESWAR PATHAK @ DHANESWAR PATHAK
            R/O VILL- NAMATI KHA
            P.S. MAZBAT,
            DIST. UDLAGURI (BTR), ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            REP BY THE PP, ASSAM

            2:BHANUMOTI DEKA
             W/O MANIK DEKA
            R/O VILL- BATABARI
            P.S.MAZBAT
            DIST. UDALGURI
            ASSAM
            PIN-78450

Advocate for the Petitioner   : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K
DAS

Advocate for the Respondent : PP, ASSAM,
                                                                      Page No.# 2/8

                        BEFORE
         HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                     ORDER

Date : 01.04.2025

Heard Mr. A. Chaudhury, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent No.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Mazbat P.S. Case No. 01/2025, under Sections 76/127(2) of the BNS, 2023 read with Section 4 of POCSO Act, 2012.

3. From the Office Note, it is seen that the service report in respect of respondent No. 2 is still awaited.

4. However, Mr. Baruah, learned Additional Public Prosecutor, submitted that the charge-sheet has already been filed in this case, vide Charge-Sheet No. 07/2025, dated 28.02.2025.

5. In that context, Mr. Chaudhury, learned counsel for the petitioner, raised the issue that though the charge-sheet might have been filed against the present accused/petitioner, but while arresting the present petitioner, the grounds of arrest were not mentioned in the Arrest Memo as well as in the Notices under Sections 47 & 8 of BNSS, which is mandatorily required and non-

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compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India and thus, the arrest and the remand itself is illegal. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the accused, should be informed to him at the time of his arrest and otherwise it would be against the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself.

6. In this context also, Mr. Chaudhury, learned counsel for the petitioner, cited the following decisions:

(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.

7. Accordingly, Mr. Chaudhury submitted that non-mentioning of grounds of arrest while issuing the Arrest Memo or Notice under Section 47 BNSS is itself in violation of Article 22(1) of the Constitution of India and hence, without even going into the detail of the merit of the case, the present petitioner is entitled to bail.

8. Mr. Baruah, learned Additional Public Prosecutor, submitted in this regard that there may not be any written communication for grounds of arrest, but from the available materials, it is very much evident that the accused was informed about the grounds of arrest orally during investigation and hence, he Page No.# 4/8

raised objection in granting bail to the accused/ petitioner.

9. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the annexures filed along with the petition, more particularly, the Arrest Memo and the Notices issued to the present accused/petitioner and his family members under Sections 47 & 48 of BNSS. It is accordingly seen that while issuing the said Notices, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notices as well as the Arrest Memo. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police.

10. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 47 of BNSS rendering the arrest and subsequent remand of the accused/petitioner invalid. The accused/petitioner has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest have to be furnished to the arrested person as a matter of course and without any explanation. Non- supply of written grounds of arrest to the arrested accused/ petitioner would vitiate the arrest even if the case has been charge-sheeted.

11. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as Page No.# 5/8

relied by the learned counsel for the petitioner, has held in paragraph No. 19 of the judgment as under:

"19. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India.

21. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality 3 (2000) 8 SCC 590committed at the time of arresting the accused and the grant of initial police custody remand to the accused.

48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase 'reasons for arrest' and 'grounds of arrest'. The 'reasons for arrest' as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the 'grounds of arrest' would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the 'grounds of arrest' would invariably be personal to the accused and cannot be equated with the 'reasons of arrest' which are general in nature."

12. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court Page No.# 6/8

has held has under:

"14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second."

13. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as in the Notice issued to the present accused/petitioner under Section 47 of BNSS and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 47 of BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India.

14. More so, the Hon'ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon'ble Supreme Court in paragraph Page No.# 7/8

No. 16 of the said judgment has held as under:

"16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22."

15. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage as the case has already been charge-sheeted. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Arrest Memo as well as in the Notices issued to the present accused/petitioner and his family members under Sections 47 & 48 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

16. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Sessions Judge, Udalguri, the accused/petitioner, namely, Samindra Pathak @ Somendra Pathak, be enlarged on bail, subject to the following conditions:

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(i) that the petitioner shall appear before the Court of learned Sessions Judge, Udalguri, on each and every date to be fixed by the Court;

(ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;