Page No.# 1/5 vs The State Of Assam
2025 Latest Caselaw 668 Gua

Gauhati High Court

Page No.# 1/5 vs The State Of Assam on 2 June, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                         Page No.# 1/5

GAHC010092852025




                                                                   2025:GAU-AS:7106

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

                                Case No. : Bail Appln./1410/2025

            BOLIN GOGOI @ DHON
            S/O- LATE HEMADHAR GOGOI, R/O- DIRIAL GAON,
            P.S-DULIAJAN,
            DIST.-DIBRUGARH, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PP, ASSAM



Advocate for the Petitioner   : MR. P HAZARIKA, MR. H S BORAH

Advocate for the Respondent : PP, ASSAM,




             Linked Case : I.A.(Crl.)/493/2025

            BOLIN GOGOI ALIAS DHON
            SON OF LATE HEMADHAR GOGOI
            RESIDENT OF DIRIAL GAON
            POLICE STATION- DULIAJAN
            DISTRICT- DIBRUGARH
            ASSAM


             VERSUS
                                                                            Page No.# 2/5

             THE STATE OF ASSAM
             REPRESENTED BY THE PUBLIC PROSECUTOR
             STATE OF ASSAM.


             ------------
             Advocate for : MR. P HAZARIKA
             Advocate for : PP
             ASSAM appearing for THE STATE OF ASSAM



                                    :: BEFORE ::
                  HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                     O R D E R

02.06.2025

Heard Mr. P. Hazarika, the learned counsel appearing for the petitioner. Also heard Mr. K.K. Parasar, the learned Addl. Public Prosecutor, Assam.

2. This is an application under Section 483 of the BNSS, 2023 praying for regular bail to the petitioner, Bolin Gogoi @ Dhon in respect of Duliajan P.S. Case No.02/2025.

3. On 01.01.2025, an FIR was lodged by Sujit Sen and Pradik Kumer Dey alleging that one unknown person called them over mobile phone and introduced himself to be the member of extremist organization called ULFA (Independent) and demanded money from them.

4. Police arrested the present petitioner under the provisions of Sections 61(2)(a), 308(5) and 351(3) of BNS, 2023 read with section 10, 11, 13 and 17 of the Unlawful Activities (Prevention) Act of 1967 read with Section 5 of the Explosive Substances Act, 1908.

5. Now, the petitioner has been in custody for more than 150 days.

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6. Mr. Hazarika has relied upon Section 43D(2) of the Act of 1967. According to Section 43D(2), Section 167 of the CrPC (now 187 of BNSS, 2023) is applicable in this case. In order to buttress his point, Mr. Hazarika has relied upon a decision of the Supreme Court in Jigar v. State of Gujarat, (2023) 6 SCC 484. Paragraphs 41, 42, 45 and 46 of the said judgment are quoted as under:

"41. Clause (b) of sub-section (2) of Section 167CrPC lays down that no Magistrate shall authorise the detention of the accused in the custody of the police unless the accused is produced before him in person. It also provides that judicial custody can be extended on the production of the accused either in person or through the medium of electronic video linkage. Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the accused has to be procured either physically or virtually. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand. The reason is that the accused has a right to oppose the prayer for the extension of the remand.

42. When the Special Court exercises the power of granting extension under the proviso to sub-section (2) of Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days. Therefore, even in terms of the requirement of clause ( b) of sub-section (2) of Section 167CrPC, it is mandatory to procure the presence of the accused before the Special Court when a prayer of the prosecution for the extension of time to complete investigation is considered. In fact, the Constitution Bench of this Court in the first part of para 53(2)(a) in its decision in Sanjay Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 :

1994 SCC (Cri) 1433] holds so.

45. The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail. If we accept the argument that the failure of the prosecution to produce the accused before the Court and to inform him that the application of extension is being considered by the Court is a mere procedural irregularity, it will negate the proviso added by sub-section (2) of Section 20 of the 2015 Act and that may amount to violation of rights conferred by Article 21 of the Constitution. The reason is the grant of the extension of time takes away the right of the accused to get default bail which is intrinsically connected with the fundamental rights guaranteed under Article 21 of the Constitution. The procedure contemplated by Article 21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Article 21. The failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21.

46. An attempt was made to argue that the failure to produce the accused will not Page No.# 4/5

cause any prejudice to him. As noted earlier, the grant of extension of time to complete the investigation takes away the indefeasible right of the accused to apply for default bail. It takes away the right of the accused to raise a limited objection to the prayer for the extension. The failure to produce the accused before the Court at the time of consideration of the application for extension of time will amount to a violation of the right guaranteed under Article 21 of the Constitution. Thus, prejudice is inherent and need not be established by the accused."

7. Mr. Parasar has objected to this bail application on the ground that the petitioner claimed to have represented an extremist organization.

8. I have considered the submissions made by the learned counsel of both sides.

9. In a case under the Unlawful Activities (Prevention) Act of 1967, the period of statutory detention may extend to 180 days. But after completion of 90 days of detention, the detenue is to be produced before the Court for extension of the time limit up to 180 days. The Special Court exercises the power of granting extension up to 180 days detention. The extension of time of detention to facilitate completion of investigation takes away the indefeceable right of the accused to apply for default bail. Failure to produce the accused before the court at the time of consideration of the application to extend the time of detention, will amount to a violation of the right guaranteed under Article 121 of the Constitution. In such a case, the prejudice is inherent and need not be established by the accused.

10. In the case in hand, before extension of time of detention beyond 90 days, the petitioner was not produced before the court. Therefore, the detention of the accused beyond 90 days is bad in law in the instant case.

11. For the aforesaid premised reason, the bail application of the petitioner, is allowed. The petitioner Boiln Gogoi @ Dhon in respect of Duliajan P.S. Case No.02/2025, shall be released on bail of ₹50,000/- with a surety of like amount to the satisfaction of the learned Chief Judicial Magistrate, Dibrugarh.

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12. The petitioner Bolin Gogoi @ Dhon is directed to co-operate with the police investigating officer as and when called for.

With the aforesaid direction, the bail application as well as the connected Interlocutory Application are disposed of.

JUDGE

Comparing Assistant