Gauhati High Court
Dr Ashok Kumar Gogoi Alias Munu vs The State Of Assam on 1 August, 2025
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GAHC010167362025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2464/2025
DR ASHOK KUMAR GOGOI ALIAS MUNU
SON OF LATE PRASANNA KUMAR GOGOI,
R/O JAIL ROAD, SAMANAY PATH, CHALIHA GAON, P.O. BORBHETA P.S.
AND DIST. JORHAT, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. P BORA, MS K BHATTACHARYYA,MR M SAHEWALLA
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
01.08.2025
Heard Mr. P. Bora, learned Senior Counsel assisted by Ms. K.
Bhattacharyya, learned counsel for the petitioner. Also heard Mr. P. Borthakur,
learned Additional Public Prosecutor for the State respondent.
2. This application under Section 483 of BNSS, praying for grant of bail to the
accused/petitioner, who has been languishing in jail hazot since 10.07.2025 in
connection with Jorhat P. S. Case No. 345/2025, registered under Sections
319(2) /316(2) /336(2)/125/271 of BNS.
3. It is submitted by Mr. Bora, learned Senior Counsel, that the present
petitioner is innocent and has not committed any offence as alleged in the FIR.
The said FIR against the accused/petitioner was registered on 09.07.2025, and
immediately on the following day, i.e., 10.07.2025, the accused/petitioner was
arrested and forwarded to judicial custody, and since then, he is behind the bar.
He further submitted that no request for police remand was made, nor was any
interrogation conducted while the petitioner was in custody. Also, no notice
under Section 35(3) of the BNSS (corresponding to Section 41A of the Cr.P.C.)
was furnished to the petitioner. Moreover, from the forwarding report, it appears
that the accused/petitioner was only served with notices under Sections 47 and
48 of the BNSS. Thus, it is submitted that the Investigating Officer (I/O) got
sufficient opportunity to interrogate the petitioner while he was in custody and
also collected relevant documents.
4. He further submitted that, as per the directions of the Hon'ble Supreme
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Court in Arnesh Kumar vs. State of Bihar & Anr., reported in (2014) 8 SCC
273, and Satender Kumar Antil vs. Central Bureau of Investigation ,
reported in 2022 SCC OnLine SC 825, every investigating officer is required to
comply with Section 41A of the Cr.P.C., corresponding to Section 35(3) of the
BNSS, and non-compliance with said provision entitles the accused to the grant
of bail.
5. Thus, he submits that in the instant case, the I/O failed to comply with the
said provision of law. Without issuing a notice under Section 35(3) of the BNSS
or giving any opportunity to the accused/petitioner, he was arrested immediately
the next day after the registration of the FIR, thereby violating the said legal
provision. Hence, the petitioner is entitled to bail.
6. He further submits that reliance may be placed on two decisions rendered
by the Co-ordinate Bench of this Court in Bail Application No. 2746/2024 dated
04.10.2024, and Bail Application No. 2870/2022 dated 18.11.2022, wherein
similar issues were considered based on the judgments passed by the Hon'ble
Supreme Court in the cases of Arnesh Kumar (supra) and Satender Kumar
Antil (supra). Thus, he further submitted that the petitioner is ready to extend
his full cooperation if his prayer for regular bail is considered.
7. In this regard, Mr. Borthakur, learned Additional Public Prosecutor,
submitted that the accused/petitioner, being a Homoeopathic doctor, practiced
as an Allopathic doctor and, accordingly, prescribed medicines to patients,
thereby causing harm and endangering people's lives. By doing so, he allegedly
deceived and breached the trust of patients by impersonating an Allopathic
doctor. He further submitted that although the case was initially registered
under Sections 319(2)/ 316(2)/ 336(2)/ 125/271 of the BNS, subsequently, vide
order dated 14.07.2025, Section 318(4) of the BNS was also added. Thus, at
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this stage, he insisted to call for the case diary to ascertain the actual facts of
the case.
8. Upon hearing the submissions made by the learned counsels for both
sides and after perusing the case record, it appears from the available
documents that the FIR was registered on 09.07.2025, and the
accused/petitioner was arrested immediately the next day, i.e., on 10.07.2025,
and was forwarded to judicial custody without any prayer for police remand. On
the day of arrest, he was served with notices under Sections 47 and 48 of the
BNSS along with the Inspection Memo. Therefore, the submission made by the
learned counsel for the petitioner regarding the non-issuance of notice under
Section 35(3) of the BNSS cannot be rejected at this stage. It is also noted that
there is no mention of the grounds or reasons for not issuing the notice under
Section 35(3) of the BNSS to the accused/petitioner, nor any explanation for
dispensing with such notice.
9. At present, it is a settled position of law that it is the duty of the police
officer to issue notice to a person suspected of committing any offence
punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years. The Hon'ble Supreme Court, in the cases of
Arnesh Kumar (supra) and Satender Kumar Antil (supra), has issued
directions to all police officers to issue notice under Section 35(3) of the BNSS
(corresponding to Section 41/41A of the Cr.P.C.) before making any arrest.
10. The Hon'ble Supreme Court, in Satender Kumar Antil (supra), observed
in paragraph 73(b) that:
"Investigating agency and their officers are duty-bound to comply with the
mandate of Sections 41 and 41A of the Code and the directions issued by
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this Court in Arnesh Kumar (supra). Any dereliction on their part must
be brought to the notice of higher authorities by the court, followed by
appropriate action. The courts must satisfy themselves regarding
compliance with Sections 41 and 41A of the Code. Any non-compliance
would entitle the accused to be granted bail."
11. Admittedly, in the present case, there appears to be no compliance with
Section 35(3) of the BNSS (corresponding to Sections 41 and 41A of the Cr.P.C.).
12. Considering this aspect of the matter, and without delving into the merits
of the case, and taking into account the length of detention already undergone
by the accused/petitioner, this Court finds it appropriate to allow the
accused/petitioner to remain on interim bail till receipt of the case diary.
13. Accordingly, it is provided that on furnishing a bond of Rs. 20,000/-
(Rupees Twenty thousand) only with one surety of like amount to the
satisfaction of the learned Chief Judicial Magistrate, Jorhat, the
accused/petitioner, namely, Dr. Ashok Gogoi @ Munu, be enlarged on bail,
subject to the following conditions:
(i) that the petitioner shall make himself available for interrogation by
the Investigating Officer as and when required;
(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; and
(iii) that the petitioner shall not leave the jurisdiction of the learned
Chief Judicial Magistrate, Jorhat, without prior permission.
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14. Call for the Case Diary.
15. List the matter again on 04.09.2025.
JUDGE
Comparing Assistant
