Gauhati High Court

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

                                                                        Page No.# 1/8

GAHC010055022025




                                                                  2025:GAU-AS:3829

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

                                Case No. : Bail Appln./807/2025

            SRI JAYANTA GHARPHOLIA
            S/O LATE BHIVIRAM GHARPHOLIA
            R/OVILL- NADUA,GOHAIN GAON
            P.O. DEEKAM,P.S. CHABUA
            DIST. DIBRUGARH, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M P BORAH, MR. S J SARMAH

Advocate for the Respondent : PP, ASSAM,




                          BEFORE
           HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                           ORDER

Date : 01.04.2025

Heard Mr. M. P. Borah, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent.

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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 Khowang P.S. Case No. 37/2023, under Sections 120B/121/121A of IPC read with Sections 10/13 of UAP Act.

3. Case Diary, as called for vide Order dated 20.03.2025, has already been received. Perused the same. Heard both sides.

4. It is submitted by Mr. Borah, learned counsel for the petitioner, that the present accused/petitioner is innocent and he is no way connected in the alleged offence. He is a reputed businessman and without any allegation, the he has been arrested in connection with this case and for last 54 days, he is in custody. Further he submitted that from the Forwarding Report, it is seen that there is no specific ground for forwarding the accused/petitioner in connection with this case. More so, he submitted that the learned Trial Court below while dealing with an application for bail filed by the present accused/petitioner had observed in its order dated 03.03.2025 that the I.O. has not prayed for extension of the period of investigation. Thus, he submitted that the I.O. has not prayed for further custodial interrogation of the present accused/petitioner nor there was any prayer for extension of period of investigation. Accordingly, Mr. Borah submitted that considering the length of detention already undergone by the accused/petitioner, his prayer for bail may be considered. However, he is ready and willing to co-operate the I.O. in further investigation of this case. More so, he submitted that the present petitioner is a chronic liver patient and he needs treatment which is not provided in the jail premises.

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5. Further Mr. Borah submitted that there are no grounds of arrest mentioned in the Arrest Memo as well as in the Notice issued to the petitioner under Section 47 BNSS, which is mandatorily required and non-compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. 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 support of his submissions, Mr. Borah, learned counsel for the petitioner, has 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. Bora submitted that non-mentioning of grounds of arrest while issuing the Arrest Memo or Notice under Section 47 of 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 Page No.# 4/8

that from the materials available in the Case Diary, it is seen that through the present petitioner there was new recruitment of the ULFA Cadre. Admittedly, he is a businessman, but he is also engaged in recruiting new ULFA Cadres. In regards to the extension of time for investigation, Mr. Baruah further submitted that the present petitioner is in custody for last 54 days and thus, the prayer for extension of time does not arise at this stage. More so, at the time of rejection of the earlier bail application by the learned Sessions Judge, Dibrugarh vide order dated 03.03.2025, the question of prayer from the I.O. regarding the extension of time also did not arise. Mr. Baruah further submitted that from the materials available in the Case Diary and the statement of the witnesses recorded under Section 161 Cr.P.C., there are sufficient incriminating materials against the present accused/petitioner and hence, he raised objection in granting bail to the accused/petitioner.

8. After hearing the submissions made by the learned counsels for both sides and also on perusal of the Case Diary, it is seen that some incriminating materials have been collected by the I.O. against the present petitioner showing his involvement in the alleged offence. Further, the prayer for extension of time for investigation at this stage also does not arise as the petitioner is behind the bar for last 54 days only and the statute provides the investigating agency to pray for extension of investigation within 90 days from the custody of the accused. However, without going into the details of the merit of the case, it is seen that while issuing the Notice under Section 47 of BNSS as well as the Arrest Memo, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was being arrested mentioned, but admittedly there is no mention about the grounds of Page No.# 5/8

arrest in the in the Notice. 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.

9. 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.

10. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioner, has held in paragraph Nos. 19, 21 & 48 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.

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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."

11. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court 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, Page No.# 7/8

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."

12. 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 BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India.

13. 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 and the investigation is still under progress. 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 Notice issued to the present accused/petitioner under Section 47 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

14. 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, Dibrugarh, the accused/petitioner, namely, Shri Jayanta Page No.# 8/8

Gharpholia, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall fully co-operate with the investigation of the case and shall appear before the Investigating Officer as and when required in connection with the investigation of the aforesaid P.S. Case;

(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;