Page No.# 1/7 vs The State Of Assam
2025 Latest Caselaw 5618 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam on 23 June, 2025

Author: Kalyan Rai Surana

Bench: Kalyan Rai Surana

                                                                        Page No.# 1/7

GAHC010041922025




                                                                  2025:GAU-AS:8508

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

                                Case No. : Bail Appln./626/2025

            ARUP DAS
            S/O LATE NAREN DAS
            R/O JOLKHANA,
            P.S. TIHU
            DIST.NALBARI, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MS. S KAUR, N NEOG,L BANIK

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 23.06.2025

Heard Mr. Rituraj Baishya, learned counsel for the petitioner and Mr. B. Sarma, learned Addl. Govt. advocate.

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2. The petitioner Arup Das, who is facing trial in Sessions Case No. 226/2024, which is pending before the Court of learned Sessions Judge, Kamrup (M), Guwahati in connection with Dispur PS Case No. 645/2024 under Section 302/34 IPC has prayed for bail under Section 483 of BNSS, 2023.

3. The petitioner has been taken into judicial custody on 27.06.2024 and accordingly he has spent about 361 days in custody.

4. Only ground on which the prayer for bail is made is that at the time of arrest, the grounds of arrest were not furnished to the petitioner, which is in violation of the provisions of Section 47 of the BNSS, 2023. In support of his contention, the learned counsel for the petitioner has referred to the case of Vihaan Kumar v. The State of Haryana & Anr., 2025 3 SCC OnLine SC 269, wherein it has been provided that information of the grounds of arrest must be provided to the arrested person, failing which it has been held that the arrest and consequent detention has been held to be bad in law.

5. The learned APP opposed the prayer for bail on the ground that the trial has already commenced and, out of 34 witnesses, 7 have been examined so far. Accordingly, it is submitted that, in view of the evidence already brought on record, there is every likelihood that the petitioner may abscond if released on bail.

6. It is also submitted that the purpose of providing the ground of arrest to a detained person as per Article 21(1) of the Constitution of India is to enable the arrested person to appropriately instruct his advocate. Accordingly, it is submitted that once the trial is began for committing murder where the charges against the petitioner has already been framed and he has provided reasonable opportunity of defending himself in accordance with law, release of the Page No.# 3/7

petitioner would not be in public interest. In support of his opposition to the prayer of bail, the learned APP has referred to the case of Kasireddy Upender Reddy v. State of Andhra Pradesh & Ors., 2025 0 Supreme(SC) 905.

7. Though the submissions made by the learned APP carries weight that in the meanwhile the charge-sheet has already been submitted and the trial has begun, however, it would be appropriate to quote paragraph 21 and 28 of the judgment rendered in the case of Vihaan Kumar (supra), which is a part of judgment rendered by Hon'ble Mr. Justice Abhay S. Oka as well as paragraph 3 of the judgment rendered by Hon'ble Mr. Justice N. Kotiswar Singh, forming part of the same Bench.

"(Hon'ble Mr. Justice Abhay S. Oka)

21. Therefore, we conclude:

a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1);

d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated.

Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

e) When an arrested person is produced before a Judicial Magistrate for remand, it is Page No.# 4/7

the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.

28. Therefore, in the facts of the case, we have no hesitation in holding that the arrest of the appellant was rendered illegal on account of failure to communicate the grounds of arrest to the appellant as mandated by Article 22(1) of the Constitution. (Hon'ble Mr. Justice N. Kotiswar Singh)

3. The purpose of inserting Section 50A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal."

8. It is also noted that in the judgment of Kasireddy Upender Reddy (supra), while referring to and following the decision of the case of Vihaan Kumar (supra), in paragraph 27 and 28, the following observations have been made-

"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 Page No.# 5/7

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."

9. In this case, the scanned copy of the record, which has been called for from the learned trial Court does not contain any material to show that the grounds of arrest was communicated to the petitioner. Under such circumstances, as per the judgment rendered in the case of Vihaan Kumar (supra), the arrest of the petitioner is found to be vitiated. Accordingly, he is found entitled to bail.

10. As the trial of the offence under Section 302/34 IPC is currently in progress, stringent conditions are required to be imposed so as to ensure that on grant of bail, the petitioner does not abscond. Accordingly, the Court is inclined to grant bail to the petitioner, namely, Arup Das in connection with the aforesaid case on furnishing bail bond of Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties of like amount to the satisfaction of the learned Sessions Judge, Kamrup (M), Guwahati.

11. The bail is granted on the following conditions:

i. The petitioner would appear before the said learned Court on each and every date of trial and that on such dates where his absence is inevitable, he would ensure that he is duly represented by his learned counsel duly instructed to cross-examine any witness that Page No.# 6/7

may present in Court and to ensure that no adjournment shall be taken by the petitioner merely because of his absence or inability to attend the Court.

ii. 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 Court or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witness.

iii. The petitioner shall not obstruct the smooth progress of the trial.

iv. The petitioner shall not misuse his liberty in any manner. v. The petitioner shall appear before the I/O within 10 (ten) days from today and he shall continue to appear once a month till his appearance is dispensed with or charge-sheet is filed, whichever is earlier.

vi. In the event the petitioner is absent on call on any dates fixed for trial, or if he attempts to meet the complainant or his any other family member, or threaten them or otherwise attempt to influence them, it would be open to the learned Sessions Judge, Kamrup (M), Guwahati to cancel this bail order and to issue a warrant of arrest to secure the presence of the petitioner for further trial.

12. It is made clear that on the default in appearance of the petitioner before the learned trial Court, this order of bail shall stands lapsed due to default and would be deemed to stand rescinded forthwith on such default so as to enable the learned Sessions Judge, Kamrup (M), Guwahati to issue a warrant of arrest.

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13. The bail application is allowed and disposed of.

JUDGE

Comparing Assistant