Page No.# 1/ vs The State Of Assam
2025 Latest Caselaw 5402 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam on 17 June, 2025

                                                                     Page No.# 1/11

GAHC010123022025




                                                                2025:GAU-AS:7682

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

                             Case No. : Bail Appln./1878/2025

           SAIDUR RAHMAN
           S/O- JABAR ALI,
           R/O- OJA GAON,
           P.S DHULA, DIST- DARRANG, ASSAM



           VERSUS

           THE STATE OF ASSAM
           REP BY PP ASSAM



Advocate for the Petitioner : SHAHAB UDDIN, F KHATUN,MR A ALAM,MR. A A
MONDAL,MR. M A CHOUDHURY,MR. A AHMED

Advocate for the Respondent : PP, ASSAM,




                         BEFORE
          HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                           ORDER

Date : 17.06.2025

Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, 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 Sessions Case No. 109/2023, arising out of Jalukbari P.S. Case No. 219/2022, under Section 460/392/302 of Indian Penal Code, pending before the Court of learned Additional District & Sessions Judge No. 2, Kamrup(M), Guwahati.

3. Scanned copy of the Trial Court Record has already been received and I have perused the same.

4. It is submitted by Mr. Ahmed, learned counsel for the petitioner, that the earlier bail application for the present accused/petitioner was rejected by this Court vide Order dated 31.05.2024 in Bail Appln. No. 1425/2024 considering only the nature and gravity of the offence. But the present petitioner is innocent and he is no way connected in the alleged offence. Further Mr. Ahmed, learned counsel for the petitioner, raised the issue that the accused/petitioner was arrested on 25.02.2023 and he was produced before the Court only on 28.02.2023 which is reveal from his forwarding report as well as from the Charge-Sheet filed in the present case. Accordingly, he submitted that it is a settled principle of law that any person arrested in connection with any case should be produced before the nearest Magistrate within 24 hours. But, here in the instant case, it is the admitted position that the accused/petitioner was produced before the Magistrate only on 28.02.2023, i.e. after 3 (three) days of his arrest on 25.02.2023, which may be a good ground for considering his bail prayer. In that context, he also relied on a decision rendered by the co-ordinate Bench of this Court passed in Bail Appln. No. 1662/2025 and he emphasized Page No.# 3/11

on paragraph Nos. 15, 16 & 17 of the said judgment wherein the co-ordinate Bench of this Court had expressed the view that non-production of the accused within 24 hours before the Magistrate amounts to violation of Article 22(2) of Constitution of India and his fundamental right to liberty guaranteed under Article 21 of the Constitution of India is also vitiated and that count the petitioner is entitled to go on bail.

5. Mr. Ahmed also raised the issue of non-furnishing of the ground of arrest to the present accused/petitioner at the time of his arrest and accordingly he submitted that neither in the Arrest Memo nor in the Notice under Section 50 Cr.P.C., the petitioner was communicated with the grounds of arrest 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 that context, Mr. Ahmed, learned counsel for the petitioner, 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.

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7. Mr. Ahmed further submitted that the accused/petitioner got arrested in connection with this case on 25.02.2023 and in spite of languishing in jail hajot for more than 3 (three) years, the trial is not yet completed and some more witnesses are yet to be recorded by the prosecution. So, considering all these aspect of the case, the prayer for present petitioner may be considered and his period of long incarceration also may be considered. The petitioner is ready to provide genuine surety and will abide by any condition if he is granted with the privilege of bail.

8. Mr. Lahkar, learned Additional Public Prosecutor, submitted in this regard that in the present case, the present petitioner, along with the co-accused persons, had brutally murdered the victim and after committing murder, the present accused/ petitioner fled away and he got arrested in connection with this case only on 25.02.2023 from Bengaluru and obtaining the order of transit remand, the accused/petitioner was produced before the Court of learned Magistrate on 28.03.2025. So, there is no intentional delay or default on the part of the investigating officer for production of the accused/petitioner before the Magistrate after lapse of 24 hours as required under Section 57 of BNSS.

9. Mr. Lahkar further submitted that non-communication of grounds of arrest in written was first considered by the Hon'ble Apex Court in case of Pankaj Bansal Vs. Union of India & Ors., reported in (2024) 7 SCC 576, wherein it has been held that the copy of the written ground of arrest should be furnished to the arrested accused person as a matter of course and without any exception. He further emphasized on paragraph No. 35 of the said judgment, Page No.# 5/11

which read as under:

"35. On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. The decisions of the Delhi High Court in Moin Akhtar Qureshi (supra) and the Bombay High Court in Chhagan Chandrakant Bhujbal (supra), which hold to the contrary, do not lay down the correct law. In the case on hand, the admitted position is that the ED's Investigating Officer merely read out or permitted reading of the grounds of arrest of the appellants and left it at that, which is also disputed by the appellants. As this form of communication is not found to be adequate to fulfil compliance with the mandate of Article 22(1) of the Constitution and Section 19(1) of the Act of 2002, we have no hesitation in holding that their arrest was not in keeping with the provisions of Section 19(1) of the Act of 2002. Further, as already noted supra, the clandestine conduct of the ED in proceeding against the appellants, by recording the second ECIR immediately after they secured interim protection in relation to the first ECIR, does not commend acceptance as it reeks of arbitrary exercise of power. In effect, the arrest of the appellants and, in consequence, their remand to the custody of the ED and, thereafter, to judicial custody, cannot be sustained."

10. He further submitted that the judgment of Pankaj Bansal (supra) 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 ground of arrest. Thus, the judgment itself speaks that the judgment is of prospective in nature wherein the written communication of ground 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 Page No.# 6/11

furnishing the same in writing could be faulted with."

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

12. 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.

13. Furthermore, Mr. Lahkar placed reliance on the recent judgment of the Hon'ble Supreme Court passed in Kasireddy Upender Reddy Vs. State of Andhar Pradesh & Ors. [Criminal Appeal No. 2808 of 2025, decided on 23.05.2025], wherein it has been held by the Hon'ble Supreme Court that if a person arrested on a warrant, the grounds for reasons for the arrest is the warrant itself. If the warrant is read over to him, that is sufficient compliance with the requirement that he should be informed of the grounds of his arrest.

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Mr. Lahkar accordingly relied on paragraph Nos. 27, 28, 29 & 36 of the said judgment, which read as under:

"27. The object underlying the provision that the grounds of arrest should be communicated to the person arrested has been very succinctly explained in Vihaan Kumar (supra). On learning about the grounds for arrest, the person concerned will be in a position to make an application before the appropriate Court for bail, or move the High Court for a writ of habeas corpus. Further, the information will enable the arrested person to prepare his defence in time for the purposes of his trial. For these reasons, it has been provided by the Constitution that, the ground for the arrest must be communicated to the person arrested as soon as possible.

28. For the purposes of Clause (1) of Article 22, it is not necessary for the authorities to furnish full details of the offence. However, the information should be sufficient to enable the arrested person to understand why he has been arrested. The grounds to be communicated to the arrested person should be somewhat similar to the charge framed by the Court for the trial of a case.

29. The rule in Article 22(1) that a person upon being arrested must be informed of the grounds of arrest is similar to, though not exactly identical with, the rules prevailing in England and in United States of America. The rule prevailing in England is that "in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested"; (per Viscount Simon L.C. in -- 'Christie v. Leachinsky (1947 AC 573 at p. 586(F)."

30. It is a rule of common law and is described in different languages by different authorities, but the meaning is the same; the arrested person must be told for what he is arrested or be informed of the cause of his arrest. In the United States the accused has the constitutional right "to be informed of the nature and cause of the accusation"; see 6th Amendment to the American Constitution. In Hooper v. Lane, (1857) 6 HLC 443 : 10 ER 1368 (G), one of the reasons for the rule was said to be that the person arrested should know whether he is or is not bound to submit to the arrest. In Christie v. Leachinsky reported in (1947) AC 573 Lord Simonds observed at page 591 as thus:

"Putting first things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested? ....... Blind, unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish on English soil".

36. If a person is arrested on a warrant, the grounds for reasons for the arrest is the Page No.# 8/11

warrant itself; if the warrant is read over to him, that is sufficient compliance with the requirement that he should be informed of the grounds for his arrest. If he is arrested without a warrant, he must be told why he has been arrested. If he is arrested for committing an offence, he must be told that he has committed a certain offence for which he would be placed on trial. In order to inform him that he has committed a certain offence, he must be told of the acts done by him which amounts to the offence. He must be informed of the precise acts done by him for which he would be tried; informing him merely of the law applicable to such acts would not be enough. (See: Vimal Kishore Mehrotra (supra))"

14. Accordingly, Mr. Lahkar, learned Additional Public Prosecutor, submitted that it is not at all a fit case to allow the accused/petitioner to go on bail and he further submitted that the petitioner had to be arrested from Bengaluru and thus, there is every probability of his absconding if he is enlarged on bail. Thus, he submitted that considering this aspect of the case, vis-à-vis the gravity of the offence, the bail prayer of the present accused/petitioner may be rejected at this stage.

15. On the other hand, Mr. Ahmed, learned counsel for the petitioner, relied on a decision of co-ordinate Bench of this Court passed in Bail Appln. No. 1173/2025, wherein the issue of non-communication of grounds of arrest was also considered and considering the judgment passed by the Hon'ble Supreme Court and also considering the fact that the judgment and order of Constitutional Court is to be considered having retrospective effect unless it is specifically mentioned in the judgment that the same would have prospective effect. Mr. Ahmed accordingly submitted that this issue of communication of ground of arrest is well settled long back in the year 1962 and as such, the decision of Hon'ble Apex Court in case of Ram Krishna Arora (supra) cannot be relied on to reject the prayer for bail of the present accused/petitioner. In Page No.# 9/11

that context, he relied on paragraph No. 6 of the order passed by the co- ordinate Bench of this Court, passed in Bail Appln. No. 1173/2025, which read as under:

"6. In reply to the submission of Mr. Borthakur, learned Additional Public Prosecutor, Mr. Ahmed, learned counsel for the accused, by referring to a decision of Hon'ble Supreme Court in the case of Harikishan vs. The State of Maharashtra, in Criminal Appeal No. 189/1961, submits that the law in respect of communication of the ground of arrest is well settled long back in the year 1962 and as such, the decision of Hon'ble Supreme Court in the case of Ram Kishor Arora (Supra) cannot be relied upon in refusing to give effect to the order of Hon'ble Supreme Court in the cases of Prabir Purkayastha (Supra) and Vihaan Kumar (Supra) retrospectively."

16. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the other annexures filed along with the petition. There is no dispute that the accused/petitioner is behind the bar for more than 2 (two) years in the present case and from the record it is seen that the ground of arrest was also not communicated to him while issuing the Notice under Section 50 as well as the Arrest memo. It is also settled proposition of law that every judgment passed by the Constitutional Court always has the retrospective effect unless the judgment itself specifically speaks that the judgment will operate prospectively. In that context, a 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 Page No.# 10/11

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."

17. But, from the judgment, as relied by the learned Additional Public Prosecutor, it has been held by the Hon'ble Supreme Court that if a person is arrested on the warrant, the grounds for reasons for arrest is the warrant itself, if the warrant is read over to him, that is sufficient compliance with the requirement that he should be informed of the ground of his arrest. In the instant case also, it is seen that the person after committing the alleged crime, he fled away and he was arrested from outside the State on the strength of warrant of arrest and thereafter taking the transit remand, he was produced subsequently before the learned Trial Court below. Thus, it cannot be denied that he was fully aware about the ground of arrest which was communicated to him at the time of his arrest and till his production before the learned Trial Court below. Thus, it cannot be considered that there was no compliance of Article 22(1) of the Constitution of India and from the record, it seen that the he was very much aware about his grounds of arrest who was arrested subsequent to the alleged commission of murder.

18. Considering the entire aspect of the case, as discussed above, and also considering the gravity of the offence wherein a person was brutally murdered by the accused persons and also considering the conduct of the accused/petitioner, this Court is of the opinion that the probability of absconding of the accused/petitioner cannot be denied at this stage. Furthermore, the Page No.# 11/11

accused/petitioner cannot claim entitlement to bail solely on the ground of non- communication of the ground of arrest in written form, particularly, when it is found that there is sufficient compliance of Article 22(1) of the Constitution of India and the petitioner was otherwise made aware of the grounds of arrest. In view of the foregoing, the prayer for bail stands rejected. The learned Trial Court is hereby directed to expedite the trial of the case and to make all possible efforts to conclude the trial at the earliest, preferably within a period of 6 (six) months from the date of passing of this order.

19. In terms of above, this bail application stands disposed of.

JUDGE

Comparing Assistant