Page No.# 1/8 vs The State Of Assam And Anr
2025 Latest Caselaw 2532 Gua

Gauhati High Court

Page No.# 1/8 vs The State Of Assam And Anr on 7 August, 2025

                                                                        Page No.# 1/8

GAHC010267522024




                                                                  2025:GAU-AS:10481

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

                               Case No. : Bail Appln./3850/2024

            ROFIQUL ISLAM
            S/O FAZLUL HOQUE
            R/O VILL- KALAPAKANI PART-II, BAILORCHAR
            P.O. PATAMARI, P.S. DHUBRI,
            IN THE DISTRICT OF DHUBRI, ASSAM, PIN-783324.

            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY THE PP, ASSAM

            2:ANAR HUSSAIN (INFORMANT)
             S/O LT. ABDUL GONI
            R/O VILL- KALAPAKANI PART-II

            BAILORCHAR
            P.O. PATAMARI
             P.S. DHUBRI
             IN THE DISTRICT OF DHUBRI
            ASSAM
            PIN-783324

Advocate for the Petitioner   : MR. R ISLAM, MR G U AHMED

Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, (AMICUS CURIAE, R2)

                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                          ORDER

07.08.2025

1. Heard Mr. R. Islam, the learned counsel for the petitioner. Also heard Mr. Page No.# 2/8

K.K. Parasar, the learned Addl. Public Prosecutor, Assam for the State respondent No.1 as well as Ms. M.K. Brown, the learned Amicus Curiae for the respondent No.2.

2. This application under Section 483 of BNSS has been filed by the petitioner, namely Rofiqul Islam, who has been detained behind the bars since 04.07.2023 (for more than 2 years 1 month) in connection with Special Case No. 180/2023, corresponding to Dhubri P.S. Case No.266/2023 under Sections 365/376DA/306 of the Indian Penal Code read with Section 6 of the POCSO Act, 2012.

3. The gist of acquisition in this case is that on 30.06.2023, the father of the victim girl had lodged an FIR before the In-charge of Bazar Nagar Police Outpost under Dhubri Police Station, inter-alia, alleging that his minor daughter on 29.06.2023 at around 1 p.m., had accompanied three of her friends and went to visit Fulbari Bridge. It is alleged in the FIR that the accused persons named in the FIR, including the present petitioner offered lift to them on bike for dropping them in their respective homes. However, they took the victim to Aminer Char and she was raped by accused Jahirul Islam and on the same day, the daughter of the informant committed suicide.

4. The learned counsel for the petitioner has submitted that the petitioner is seeking bail mainly on two grounds, namely, that no grounds of arrest were communicated to him when he was arrested in connection with the aforesaid case as well as on the ground of prolonged incarceration.

5. The learned counsel for the petitioner has submitted that though the notice under Section 50 of the Code of Criminal Procedure, 1973 was served on the petitioner at the time of his arrest, however, the said notice did not contain any ground of arrest. Neither did it contain the basic facts which necessitated Page No.# 3/8

his arrest in connection with the aforesaid case. He submits that the notice only contains information regarding the police station case number as well as the penal provisions involved in the case. Hence, he submits that there is violation of the fundamental rights of the petitioner guaranteed under Article 22(1) of the Constitution of India. In support of his submission, the learned counsel for the petitioner has cited the ruling of the Apex Court in the case of Prabir Purkayastha Vs. State (NCT) of Delhi, reported in (2024) 8 SCC 254 as well as Vihaan Kumar Vs. State of Haryana and Another, reported in 2025 SCC OnLine SC 269.

6. The learned counsel for the petitioner has also submitted that the petitioner is seeking bail also on the ground of prolonged incarceration. He submits that the petitioner has been languishing behind the bars for last more than 2 years 1 month. However, till date out of 40 listed prosecution witnesses only 13 have been examined and considering the pace at which the trial is progressing, it is unlikely that it would culminate soon. He also submits that the prolonged incarceration of the petitioner has infringed his fundamental rights guaranteed to him under Article 21 of the Constitution of India and on that count he is entitled to get bail. In support of his submission, the learned counsel for the petitioner has cited a ruling of the High Court of Bombay in the case of Digambar Uddhav Supekar Vs. State of Maharashtra (order dated 16.10.2024 passed in Bail Application No.3284/2024).

7. On the other hand, the learned Addl. Public Prosecutor has vehemently opposed the grant of bail to the petitioner on the ground that there are sufficient incriminating materials in the record against the present petitioner and some of the material witnesses are yet to be examined. He also submits that the grounds of arrest were communicated to the petitioner at the time of his Page No.# 4/8

arrest as is apparent from the endorsement made in the case diary to that effect by the Investigating Officer. He also submits that in the order dated 05.07.2023 passed by the learned Special Judge (POCSO), Dhubri, it is mentioned that the grounds of arrest were communicated to the petitioner, after he was arrested. He submits that the requirement of furnishing written grounds of arrest is there only from the date of the judgment of the Apex Court in the case of Pankaj Bansal Vs. Union of India, reported in (2024) 7 SCC 576, as has been clarified by the Apex Court in the case of Ram Kishor Arora Vs. Directorate of Enforcement, reported in (2024) 7 SCC 599.

8. Ms. M.K. Brown, learned Amicus Curiae for the respondent No.2 also submits similar to that of the learned Addl. Public Prosecutor and hence, opposed the grant of bail to the petitioner at this stage. She submits that in the case of Ram Kishor Arora (supra), the Apex Court has clarified that the use of the phrase 'henceforth' in the judgment of Pankaj Bansal (supra) by the Apex Court would mean that the requirement of communicating the grounds of arrest, in writing, to the arrestee would be applicable prospectively from the date of the judgment of the Apex Court in the case of Pankaj Bansal (supra). She also submits that in a case where there are materials on record to indicate that the grounds of arrest were otherwise communicated to an arrestee in case where arrest has been made prior to the judgment of Pankaj Bansal (supra), such communication may not be regarded as infringement of the fundamental rights of a person guaranteed under Article 22(1) of the Constitution of India.

9. In response to the submission made by the learned Addl. Public Prosecutor as well as the learned Amicus Curiae regarding non-requirement of furnishing written grounds of arrest in writing in cases where such arrest was made prior to the judgment of Pankaj Bansal (supra), the petitioner's counsel has cited Page No.# 5/8

a ruling of this Court in the case of Rafiqul Hoque alias Mirajul Hoque Vs. the State of Assam (order dated 02.06.2025 passed in Bail Appln. No.1600/2025) as well as the judgment of the Apex Court in the case of Kanishk Sinha & Anr. Vs. State of West Bengal and Anr., reported in (2025) SCC OnLine SC 443, wherein it was observed that judicial decisions are normally retrospective in application unless mentioned otherwise therein. He also submits that in the decisions of the Apex Court in Prabir Purkayastha (supra) and Vihaan Kumar (supra), there was no indication that the requirement of furnishing written grounds of arrest to an arrestee would be applicable prospectively.

10. I have considered the submissions made by the learned counsels for both sides and have gone through the rulings cited by them as well as the scanned copy of the Trial Court record, which was requisitioned in connection with this case.

11. Article 22 of the Constitution of India mandates that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. A bare reading of the aforesaid provision would show that it provides twofold protection to an arrestee. Firstly, that his right to know about the grounds of arrest and secondly, his right to consult and to be defended by a legal practitioner of his own choice. The Apex Court in various of its landmark judgments have interpreted the aforesaid provisions and have fortified the protection given to an arrestee by the aforesaid provisions. The Apex Court in the case of Pankaj Bansal Vs. Union of India(supra) has observed that the grounds of arrest in writing has to be furnished to an arrested person, as a matter of course, without exception. The Page No.# 6/8

said provision of law was further fortified by the Apex Court in the case of Prabir Purkayastha Vs. State (NCT) of Delhi (supra) and in the case of Vihaan Kumar Vs. State of Haryana and Another (supra). However, the Apex Court in the case of Ram Kishor Arora Vs. Directorate of Enforcement (supra) has interpreted the use of the word 'henceforth' in the case of Pankaj Bansal Vs. Union of India (supra) as meaning that the requirement of furnishing the grounds of arrest in writing will be mandatory from the date of pronouncement of the judgment in the case of Pankaj Bansal Vs. Union of India (supra). It also observed that if the arrest has been made before the said date, non-furnishing of the grounds of arrest, in writing, could not be faulted with.

12. However, there has to be materials on record to show that the grounds of arrest were otherwise communicated to the petitioner after his arrest. In the instant case, it appears that the petitioner was arrested on 04.07.2023, i.e., prior to the date of the judgment in the case of Pankaj Bansal Vs. Union of India (supra). Thus, even if we go by the interpretation given by the Apex Court in the case of Ram Kishor Arora Vs. Directorate of Enforcement (supra), the prosecution must show as to how the grounds of arrest were communicated to the petitioner soon after his arrest.

13. On perusal of the scanned copy of the case diary, which is available before this Court, it appears that there is an endorsement by the Investigating Officer therein to the effect that the accused persons have been informed about the grounds of arrest and their rights as per Section 50 and 50A of Cr.P.C. It appears that in the notice issued to the petitioner under Section 50 of Cr.P.C., no grounds of arrest have been mentioned. It also appears that apart from serving the said notice to the petitioner, there is no indication in the case diary that he Page No.# 7/8

was communicated by the Investigating Officer, either orally or through other means, apart from notice under Section 50 Cr.P.C., about the grounds of his arrest. Thus, this Court is of the considered opinion that even if it is agreed that the requirement of furnishing written grounds of arrest to an arrestee would be applicable only after the date of the judgment of the Apex Court in the case of Pankaj Bansal Vs. Union of India (supra), the prosecution side has failed to show as to how otherwise the grounds of arrest were communicated to the petitioner. Thus, though this case involves heinous offences, however, this Court is constrained to observe that the fundamental rights guaranteed to the petitioner under Article 22(1) of the Constitution of India has been violated in this case. He is, therefore, entitled to get bail on that count only.

14. For the above reasaons, the above named petitioner is allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand) with two sureties of like amount subject to the satisfaction of the learned Special Judge (POCSO), Dhubri with the following conditions:

i. That the petitioner shall cooperate in the trial of Special Case No. 180/2023, which is pending in the Court of learned Special Judge (POCSO), Dhubri;

ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court;

iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner;

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iv. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; and

v. That the petitioner shall not commit any similar offence while on bail.

15. With the above observation, this bail application is accordingly, disposed of.

JUDGE

Comparing Assistant