Gauhati High Court

Page No.# 1/ vs The State Of Assam on 19 August, 2025

                                                                        Page No.# 1/10

GAHC010150892025




                                                                  2025:GAU-AS:11025

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

                               Case No. : Bail Appln./2236/2025

            SURAT JAMAL ALIAS KALU AND ANR
            S/O PHULCHAND MIYA
            R/O IVLL- MONDIA 1 NO. BORDOLONI P.S. B AGHBOR
            DIST. BARPETA, ASSAM

            2: RAFIKUL ISLAM @ GENDA
             S/O FULSAN ALI
            R/O VILL- DIGIRPAM MANDIA
            P.S. B AGHBOR
            DIST. BARPETA
            ASSA

            VERSUS

            THE STATE OF ASSAM
            TO BE REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR. A AHMED, F KHATUN,MR. S UDDIN,MR A ALAM,MR. A A
MONDAL

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                           ORDER

Date : 19-08-2025 Page No.# 2/10

Heard Mr. A. Ahmed, the learned counsel for the petitioners. Also heard Mr. P.S. Lahakar, the learned Additional Public Prosecutor appearing on behalf of the State respondent.

2. This application is filed under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioners, who have been arrested in connection with Sessions Case No. 109/2023 arising out of Jalukbari P.S. Case No. 219/2022, under Sections 460/392/302 of IPC which is pending before the learned Additional District & Sessions Judge No. 2 Kamrup (M).

3. Scanned copy of the TCR has already been received.

4. It is submitted by Mr. Ahmed, the learned counsel for the petitioners that both the petitioners are innocent and they have not committed any such offence as alleged in the FIR. The petitioner no. 1 got arrested in connection with this case on 02.03.2023 and petitioner no. 2 was arrested on 06.03.2023. The petitioner no. 2 is shown arrested in connection with this case and there was no recovery from the possession of the two petitioners. Both the petitioners are under long incarceration for more than 2 years 5 months in custody and presently the case is at the stage of evidence and out of 19 cited witnesses, 10 nos. of witnesses have already been examined by the prosecution. He further submitted that the last prosecution witness was examined in the month of February, 2025 and thereafter no prosecution witness could be examined till date. Thus the completion of the trial will take considerable period and hence considering the period of long incarceration both the petitioners may be enlarged on bail. However, they will regularly appear before the learned Court Page No.# 3/10

below.

5. Mr. Ahmed further submitted that no grounds of arrest was communicated to the petitioner no. 1 at the time of his arrest and in that regard no notice u/s 50 and 50A Cr.PC was issued to the accused/petitioner no. 2 who was shown arrested in connection with this case. Further, he submitted that though the notice u/s 50 and 50A Cr.PC was furnished to the petitioner no. 1 at the time of his arrest but no grounds of arrest was communicated to the petitioner, which is a mandatory requirement. The non-compliance of this requirement constitutes a violation of Articles 21 and 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 in writing and copy of such written grounds of arrest should be furnished to the accused/person as a matter of course and without any exception. Non-supply of the written grounds of arrest to the arrested accused/petitioners would vitiate the arrest even if the case has been charge-sheeted.

6. Mr. Ahmed further submitted that it is a settled law that the accused should be provided with the grounds of arrest as per mandate of Article 22(1) of Constitution and even in a case of person shown arrested in a specific case, the Arresting Authority is the duty bound to furnish the grounds of arrest to such an arrestee and also to serve a notice u/s 47 & 48 BNSS corresponding to section 50 & 50A of Cr.PC. In that context also Mr. Ahmed relied with an order of coordinate Bench passed in Bail Application No. 427/2025 dated 30.07.2025 wherein also it is observed that in case of a shown arrest also the Investigating Officer is duty bound to communicate the grounds of arrest to the accused. He also relied on another order of the Coordinate Bench in Bail Application No. Page No.# 4/10

892/2025 dated 11.06.2025 and emphasized on para 9 of the said judgment which read as under:-

"9. In Directorate of Enforcement ... Versus Subhash Sharma 2025 SCC OnLine SC 240, the Apex Court has held as under:

"8. Once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution."

7. Accordingly, it is submitted by Mr. Ahmed that considering the period of long incarceration and also considering the fact that both the petitioners were not provided with the grounds of arrest, the prayer of bail of the present petitioners may be considered and the petitioners will abide by any terms and conditions imposed on them, if they are granted with the privilege of bail.

8. Mr. Lahakar, the learned Additional Public Prosecutor, submitted in this regard that there are sufficient incriminating materials against the present petitioners and case is of serious in nature wherein the husband of the informant was killed by the dacoits and these two petitioners are also involved in the alleged offence. He further submitted that out of 19 nos. of prosecution witnesses 10 nos. of witnesses have already been examined and can be expected that within a reasonable period there will be completion of trial. Further, Mr. Lahakar submitted that the petitioner no. 2 was shown arrested in this case and he was fully aware about the grounds of arrest and the petitioner no. 1 who was arrested in connection with this case was furnished with Notice u/s 50 & 50A Cr.PC. However, the grounds of arrest was not mentioned in detail in writing.

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9. He further submitted that the judgment of Pankaj Bansal Vs. Union of India & Ors., reported in (2024) 7 SCC 576 was passed by the Division Bench of the Hon'ble Supreme Court on 03.10.2023 wherein it was considered that "henceforth" there should be written communication of the grounds of arrest. Thus, the judgment itself speaks that the judgment is of prospective in nature wherein the written communication of grounds of arrest has to be made to any accused person after arrested on 03.10.2023. In the case of Ram Kishor Arora Vs. Directorate of Enforcement, reported in 2023 8 Supreme 514, also, the Hon'ble Apex Court reiterated the same facts in paragraph No. 23 of the said judgment, wherein it is expressed the view that "non-furnishing of grounds of arrest in writing till date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with."

10. Mr. Lahkar further submitted that the ratio laid down in Pankaj Bansal (supra) has also been considered and affirmed by the Hon'ble Supreme Court in Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC

254. In Paragraphs 45 and 51 of the said judgment, the Apex Court reiterated that the principles enunciated in Pankaj Bansal (supra) would govern the issue. The said ratio has further been followed in Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269, wherein a similar view has been expressed. Specifically, in Paragraph 15 of the judgment in Vihaan Kumar (supra), it has been observed that " although there is no requirement to communicate the ground of arrest in writing, what is stated in paragraphs 42 & 43 of the decision in the case of Pankaj Bansal are suggestion that merit consideration." Accordingly, it held that "the police have to balance the rights of Page No.# 6/10

a person arrested with the interests of the society. Therefore, the police should always scrupulously comply with the requirements of Article 22."

11. Citing the above referred judgments, Mr. Lahkar, learned counsel, submitted that the accused/petitioner is not entitled to be released on bail only on the ground of non-communication of grounds of arrest in written form.

12. Mr. Lahakar accordingly submitted that prior the case of Pankaj Bansal there was no direction from the Hon'ble Apex Court for providing the grounds of arrest in writing or in detail form and the use of word "henceforth" clearly indicates that the judgment will have the prospective effect.

13. In that regard it is submitted by Mr. Ahmed, the learned counsel for the petitioner that it is not a case of "caught red handed" and both the petitioners were arrested on suspicion subsequent to the alleged offence and hence it is the duty bound by the I/O to provide them the grounds of arrest. It is submitted that regarding the prospective and retrospective nature of the order the Hon'ble High Court at Karnataka, Bengaluru has discussed in detail while passing the order in Petition No. 9302/2025. Further, the matter is also pending before the Division Bench of the Hon'ble Supreme Court.

14. After hearing the submissions made by the learned counsel for both sides, I have also perused the scanned copy of the TCR and the other annexures filed with the petition and the evidence so far recorded by the learned Trial Court below. It is an admitted fact that both the accused/petitioners are behind the bars since more than 2 years 5 months and petitioner no. 2 was also shown arrested in connection with this case. It is also admitted position that the petitioners were subsequently arrested for the alleged offence and it is not a Page No.# 7/10

case of "caught red handed" and thus it is the duty of the I/O to provide all the grounds of arrest to the petitioners. It is also settled proposition of law that every judgment passed by the constitutional Court always have a retrospective effect unless the judgment itself specifically speaks that the judgment will operate prospectively. In that context, the decision of Hon'ble Supreme Court passed in Special Leave Petition (Criminal) Nos. 8609-8614 of 2024 (Kanishk Sinha & Anr. Vs. The State of West Bengal & Anr. can be relied on, wherein in paragraph No. 3 of the judgment, it has been observed as under:

"...

Now the law of prospective and retrospective operation is absolutely clear. Whereas a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpretated by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. The prospective operation of a judgment is normally done to avoid any unnecessary burden to persons or to avoid undue hardships to those who had bona fidely done something with the understanding of the law as it existed at the relevant point of time. Further, it is done not to unsettle something which has long been settled, as that would cause injustice to many."

15. The Hon'ble Supreme Court in the case of Directorate of Enforcement Vs. Subhash Sharma, reported in 2025 SCC OnLine 240, in paragraph No. 8 of the judgment, has observed that " once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution."

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16. Further, it is a settled proposition of law that the High Courts or the Subordinate Courts should decide the matters on the basis of law as it stands and unless specifically directed by the Hon'ble Supreme Court to await an outcome of a reference or review petition as the case may be. In that context also, a decision of Hon'ble Supreme Court can be relied on which was reported in 2023 SCC OnLine SC 114 (Union Territory of Ladakh Vs. Jammu and Kashmir National Conference), wherein in paragraph No. 35 of the judgment, it has been held as under:

"35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it."

17. In the instant case as discussed above it is seen that there was no mention of grounds of arrest as well as in the notice issued to the present accused/petitioner no. 1 and in the same time no notice was served on the accused/petitioner no. 2 who was shown arrest in connection with this case. Thus, it is seen that there is clear violation of mandate of Article 22(1) of Constitution of India wherein the accused/petitioners were not provided with the grounds of arrest at the time of their arrest. In para 31 of the judgment of Vihan Kumar (supra) the Hon'ble Supreme Court has held that all Courts, Page No.# 9/10

including the High Court, have a duty to uphold fundamental rights. Once a violation of a fundamental right under Article 22(1) was alleged, it was the duty of the High Court to go into the said contention and decide in one way or the other. For ready reference, paragraph No. 31 of the said judgment read as under:

"31. The learned Single Judge, unfortunately, has equated information given regarding the appellant's arrest with the grounds of arrest. The observation that the allegation of non- supply of the grounds of arrest made by the appellant is a bald allegation is completely uncalled for. All courts, including the High Court, have a duty to uphold fundamental rights. Once a violation of a fundamental right under Article 22(1) was alleged, it was the duty of the High Court to go into the said contention and decide in one way or the other. When a violation of Article 22(1) is alleged with respect to grounds of arrest, there can be possible two contentions raised: (a) that the arrested person was not informed of the grounds of arrest, or (b) purported information of grounds of arrest does not contain any ground of arrest. As far as the first contention is concerned, the person who is arrested can discharge his burden by simply alleging that grounds of arrest were not informed to him. If such an allegation is made in the pleadings, the entire burden is on the arresting agency or the State to satisfy the court that effective compliance was made with the requirement of Article 22(1). Therefore, the view taken by the High Court is completely erroneous."

18. In the same time it also cannot be denied that both the accused/petitioners are in custody since more than 2 years 5 months and 9 nos. of witnesses still remained to be examined by the prosecution and thus considerable period will be taken for completion of the entire trial. So considering both the aspects of the case i.e. long incarceration and the issue of non-furnishing of the grounds of arrest, I find it a fit case to extend the privilege of bail to the accused/petitioners.

19. 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 Page No.# 10/10

Additional Sessions Judge No. 2, Kamrup (M), the accused/petitioners, namely, [1] Surat Jamal @ Kalu and [2] Rafikul Islam @ Genda be enlarged on bail, subject to the following conditions:

(i) that the petitioners shall appear before the Court of learned Additional Sessions Judge No. 2, Kamrup (M), on each and every date to be fixed by the Court;

(ii) that the petitioners 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/them from disclosing such facts to the Court or to any police officer;