[Cites 19, Cited by 0]
Gauhati High Court
Page No.# 1/9 vs The State Of Assam on 19 December, 2025
Page No.# 1/9
GAHC010259042025
2025:GAU-AS:17778
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3842/2025
SAIDUR RAHMAN
S/O JABAR ALI
R/O VILL. OJA GAON
P.S. DHULA
DIST. DARRANG, ASSAM
VERSUS
THE STATE OF ASSAM,
TO BE REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM.
Advocate for the Petitioner : MR. A AHMED, MR. S UDDIN,MR A ALAM,MR. A A MONDAL
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MRS. JUSTICE MITALI THAKURIA
ORDER
19-12-2025
Heard Mr. A. Ahmed, learned counsel for the petitioner and Mr. R. R.
Kaushik, learned Additional Public Prosecutor, for the State respondent.
2. This is an application filed under Section 483 of BNSS, 2023 praying for
grant of bail to the accused/petitioner, namely, Saidur Rahman, who has been
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arrested in connection with Sessions Case No. 109/2023 arising out of
Jalukbari P.S. Case No. 219/2022 under Sections 460/392/302 IPC, pending in
the Court of learned Additional Sessions Judge, No.2, Kamrup (M), Guwahati.
3. Scanned copy of the TCR has already been received. Perused the same.
4. It is submitted by Mr. Ahmed, learned counsel that the earlier bail
application of the present accused petitioner was rejected by this Court and the
present petition has been filed on the ground of long incarceration as well as
also on the ground of non furnishing of Notice under Section 50A of the CrPC to
his family members.
5. Mr. Ahmed, learned counsel further submitted that the accused petitioner
is in custody since 28.02.2023 and as of today he is behind the bar for 2 years
10 months and hence considering his long incarceration, he may be released on
bail.
6. Mr. Ahmed, learned counsel further submitted that as per the prosecution
case, the petitioner had led the investigating team to the house of one Sanjib
Barman from where some articles were seized along with steel box wherein the
fingerprint of the petitioner was allegedly found. But surprisingly said Sanjib
Barman is not made a seizure witness by the prosecution from whom the
articles were allegedly seized by the investigating officer.
7. Further, Mr. Ahmed submitted that there is no material against the present
petitioner to prove his involvement in the alleged offence and that apart there is
no compliance of Section 50A CrPC as the family members of the petitioner
were never informed about his arrest, which is mandatorily required to be
followed, which violates the statutory right of the petitioner guaranteed under
Article 22(1) and 21 of the Constitution of India.
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8. Mr. Ahmed further submitted that there are as many as 19 number of
witnesses cited by the prosecution in the case, out of which only 10 numbers of
witnesses have been examined and the last witness was examined on
01.02.2025 and thereafter, no witness has turned up before the Court. The
accused is in custody for last 2 years 10 months, but till date only 10 numbers
of witnesses could not examined and 9 numbers of witnesses are yet to be
examined by the prosecution and thus, it cannot be expected that the trial will
be concluded within a reasonable period of time.
9. More so, in the earlier rejection order, this Court had directed the learned
Sessions Judge to complete the trial within a period of 6 months, but even after
lapse of 6 months period, there is no change of status of the present case and
the case is still at the evidence stage, wherein 10 numbers of witnesses are
being examined by the prosecution.
10. Accordingly, he submitted that it reveals from the record itself that there is
violation of Articles 21 and 22 of the Constitution of India wherein the accused
is under prolonged incarceration and at the same time, there is no proper
compliance of Section 50A of the CrPC. In that context he relied on a decision of
the Hon'ble Supreme Court in the case of Directorate of Enforcement Vs.
Subhas Sharma and emphasized on para 8 of the said judgment wherein it
has been observed that "while dealing with a bail application, if the Court finds
that the fundamental rights of the accused under Article 21 and 22 of the
Constitution of India have been violated while arresting the accused or after the
arresting him, it is the duty of the Court dealing with bail application to release
the accused on bail."
11. He further submitted that Division Bench of this Court in the order dated
21.08.2025, passed in Crl. A. No. 234/2025 (National Investigating Agency Vs.
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Thangminlen Mate @ Lenin Mate) also expressed the view that grounds of
arrest in writing to the family members or relatives of the accused should be
furnished within a reasonable period of time if it is not possible to furnish,
immediately after the arrest. While passing the order in said appeal, the Division
Bench also considered the view expressed by the Hon'ble Supreme Court in the
case of Vihaan Kumar (supra).
12. Mr. Ahmed further submitted that in the instant case, it is seen that inspite
of direction from this Court to conclude the trial preferably within a period of 6
months, no endevour has been made by the learned Sessions Judge for
conclusion of the trial and the status of the case also remains same at the time
of passing the earlier rejection order. Accordingly, he submitted that the length
of detention/long incarceration may be one of the ground for consideration of
his bail. To substantiate the same he also relied on another decision of the
Hon'ble Supreme Court in the case of Hasanujjaman and Ors. Vs. The State
of West Bengal and emphasized on para 4 of the said judgment, which reads
as under:-
"4. The investigation is complete; chargesheet has been filed, though the charges are
yet to be framed. The conclusion of trial will, thus, take some reasonable time,
regardless of the direction issued by the High Court to conclude the same within one
year from the date of framing of charges. The petitioners do not have any criminal
antecedents. There is, thus, substantial compliance of Section 37 of the NDPS Act."
13. Mr. Ahmed also cited another decision of the Hon'ble Supreme Court in the
case of Ahmed Mansoor & Ors Vs. the State represented by Assistant
Commissioner of Police & Anr., reported in 2025 LiveLaw (SC) 1026
wherein also the Court expressed the view that requirement of communicating
the grounds of arrest in writing is not merely a formality but is essential to
enable them to take prior action to secure the release of the arrested accused
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persons which includes engaging lawyer and seeking bail at the earliest.
14. Mr. Ahmed, learned counsel further submitted that from the statement
made by one of the co-accused namely, Manjur Ali under Section 161 CrPC
before the I.O. it reveals that he named one Bakkar Ali, Usman Ali and Rustom
Ali who were also residing in the rented premises had made preparation of
committing decoity in the house of the deceased and subsequently he also
came to know that they had committed decoity and also murdered said Ajit
Chetia and coming to know about the same, he fled away from the rented
premises. But, those three persons who were stated to have killed the deceased
were never arrested in connection with this case.
15. Citing the above referred judgment it is submitted by Mr. Ahmed, learned
counsel that the length of prolonged incarceration and also considering the non
communication of the grounds of arrest to his family members, his present bail
application may be considered. However, the petitioner being the local person,
he will appear before the learned Sessions Judge on each and every date the
case is fixed by the Court and there is no chance of absconding.
16. Mr. Kaushik, learned Addl. PP submitted that considering the merit of the
case and other aspects this bail application was earlier rejected by this Court
and hence, he is not submitting on the merit of the case. But cited the
judgment of the Hon'ble Suprme Court in the case of Mihir Rajesh Shah Vs.
State of Maharashtra and Another reported in 2025 LiveLaw (SC) 1066
wherein in para 58 it has been observed as follows:-
"58. We are cognizant that there existed no consistent or binding requirement
mandating written communication of the grounds of arrest for all the offences. Holding
as above, in our view, would ensure implementation of the constitutional rights
provided to an arrestee as engrafted under Article 22 of the Constitution of India in an
effective manner. Such clarity on obligation would avoid uncertainty in the
administration of criminal justice. The ends of fairness and legal discipline therefore
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demand that this procedure as affirmed above shall govern arrests henceforth."
17. Citing the said judgment of the Hon'ble Supreme Court, Mr. Kaushik,
submitted that the word 'henceforth' is used in the said judgment wherefrom it
is seen that written ground of communication may be communicated after the
judgment passed by the Hon'ble Supreme Court in said Mihir Rajesh Shah
(supra).
18. Mr. Kaushik further submitted that the observation made by this Court
while rejecting his earlier bail application was not the direction to the learned
Sessions Judge for completion of trial within 6 months, but it was an
observation wherein the learned Sessions Judge was asked to take all endevour
to complete the trial of the case preferably within 6 months. Thus, that cannot
be the only basis for consideration of the present bail application which was
rejected earlier by this Court considering all aspects of the case including the
furnishing of written communication of ground of arrest to accused as well as
his family members under Sections 50/50A CrPC.
19. Mr. Kaushik, further submitted that in the present case it also cannot be
considered as inordinate delay in the trial as within 3 years the prosecution has
completed the recording of evidence of 10 prosecution witnesses, however, due
to absence of the Court there was some delay in completion of the trial. He
further submitted that two aspects has to be considered for granting bail on the
ground of inordinate delay, wherein there is no possibility of completion of trial
within a reasonable opportunity. But here in the instant case, out of 19 cited
witnesses, prosecution has already examined 10 witnesses and hence,
considering this aspect, the prolonged incarceration cannot be a ground of bail
for the present accused petitioner who has allegedly committed an offence of
murder and decoity.
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20. At the same time, the proviso to Section 436 CrPC is also not applicable in
this case considering the penal provisions as well as the seriousness of the
offence. In that context he also relied on a decision of the Co-ordinate Bench
passed in Bail Appln. No. 1371/2025 (Ubaidur Rahman @Ubaydur Rahman Vs.
State of Assam) dated 24.06.2025 and basically emphasized on para 44 of the
said judgment, which reads as follows:-
"44. In the present case, the petitioner has been in jail for less than 3 years.
However, as the punishment of rigorous imprisonment provided under Section
21(c) NDPS Act is that it shall not be less than 10 years, but which may extend
to 20 years, this Court finds that Section 436A Cr.P.C. is not applicable at this
stage of the case. On considering the seriousness of the offence and the fact
that the heroin was concealed on the body of the petitioner, this Court is not
inclined to grant bail at this stage. The bail application is accordingly rejected."
21. Heard the submissions made by the learned counsel for both sides and I
have also perused the scanned copy of the case record as well as the earlier
rejection order.
22. While passing the earlier rejection order, this Court had made detailed
discussion in regards to communication of grounds of arrest or compliance of
Sections 50/50A of the CrPC and also taken into account other aspects including
the seriousness and gravity of the offence.
23. However, it cannot be denied that inspite of direction made by this Court
while rejecting the earlier bail application, the Trial Court did not make any
endeavour for concluding the trial and the status of the case also remains same
and further it is seen that last witness was examind by the Court only in the
month of February, 2025. But inspite of lapse of more than 10 months no other
witness could be examined by the prosecution and admittedly 9 witnesses are
yet to be examined by the prosecution.
24. Thus, without going into the other detail or merit of the case, it is seen
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that inspite of the fact that the accused being in custody for more than 2 years
10 months, the prosecution could not complete the trial and 9 numbers of
witnesses are yet to be examined and thus, it cannot be expected that the trial
of the case will be concluded within a reasonable period of time. Thus, it is seen
that prolonged incarceration of the accused petitioner violates the fundamental
right guaranteed under Article 21 of the Constitution of India and hence,
considering only this aspect of the case, the bail prayer of the present petitioner
is accepted.
25. 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
Additional Sessions Judge No.2, Kamrup (M), Guwahati, the
accused/petitioner, namely, Saidur Rahman, be enlarged on bail in connection
with Sessions Case No. 109/2023 arising out of Jalukbari P.S. Case No.
219/2022 under Sections 460/392/302 IPC, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned
Additional Sessions Judge No.2, Kamrup (M), Guwahati, 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/her from disclosing such
facts to the Court or to any police officer;
(iii) that the petitioner shall submit his Aadhar Card and PAN Card
before the learned Additional Sessions Judge No.2, Kamrup (M),
Guwahati; and
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(iv) that the petitioner shall not leave the jurisdiction of the learned
Additional Sessions Judge No.2, Kamrup (M), Guwahati, without
prior permission.
26. With the above observation and direction, this bail application stands
disposed of.
JUDGE
Comparing Assistant
