Gauhati High Court
Page No.# 1/ vs The State Of Assam on 4 March, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/11
GAHC010045572025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./600/2025
BIJOY DUTTA
S/O KRISHNA DUTTA R/O VILLAGE SARISHA, PS KARIMGANJ, DIST
SRIBHUMI, ASSAM.
2: IMDADUR RAHMAN
S/O LATE FAKAR UDDIN
RESIDENT OF VILLAGE DIGHIRPAR
PS BADARPUR
DIST SRIBHUMI
ASSAM
3: NUMAN AHMED
S/O LATE KHALILUR RAHMAN
RESIDENT OF VILLAGE DORAIL
PS BADARPUR
DIST SRIBHUMI
ASSAM
4: REZZAK ALI
S/O ABDUL KHALEK
RESIDENT OF VILLAGE MAZARCHAR
PS ALUOTICHAR
DIST BARPETA
ASSA
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
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Advocate for the Petitioner : SAMRIDDHI SAIKIA,
Advocate for the Respondent : PP, ASSAM,
Linked Case : Bail Appln./601/2025
HIRAMONI SAIKIA
W/O BASANTA BORA R/O 82
USHLAY APARTMENT
HATIGAON
LAKHIMINAGAR
UNDER HATIGAON PS
KAMRUP(M)
ASSAM.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP
ASSAM
------------
Advocate for : MR. M S HUSSAIN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
04.03.2025
Heard Mr. A.M. Bora, the learned senior counsel assisted by Mr. D.K. Baidya; Mr.
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K.P. Pathak, learned senior counsel assisted by Mr. D. Das, the the learned counsels
appearing for the petitioners. Also heard Mr. M. Phukan, the learned Public Prosecutor,
Assam.
2. These two bail applications are under Section 483 of the BNSS, 2023, whereby
the petitioners, namely- Bijoy Dutta, Imdadur Rahman, Numan Ahmed, Rezzak Ali and
Hiramoni Saikia have prayed for releasing them on bail after they were arrested in
connection with Patharkandi P.S. Case No.54/2025.
3. On 21.02.2025, police lodged an FIR before Patharkandi Police Station with the
below mentioned allegations -
i. On 21.02.2025, 274 students appeared at Central Public School,
Patharkandi for writing the Physics Paper of 12 th Standard CBSE
Examination. This Central Public School, Patharkandi is an institution run
by E.R.D. Foundation based at Guwahati. This E.R.D. Foundation is run by
USTM.
ii. Out of the aforesaid 274 students, 15 were from Adarsha Vidyalaya,
Patharkandi and 45 of them are from Central Public School, Patharkandi.
The remaining 214 students were enrolled in Central Public School, but
they never attended any classes in that school. In fact, under the Vision
50 Programme, they were attending classes at USTM, Guwahati. This
Vision 50 Programme was a special coaching programme run by USTM.
iii. It is alleged in the FIR that those 214 students had created law &
order problem on the day of the examination. Their contention was that
at the time of admission, they were promised that at the time of
examination, the Invigilators would help them in writing the 12 th Standard
Examination. But the 214 students did not get the promised help from the
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Invigilators.
iv. Out of the 214 students, some even did not know that they were
students of Central Public School, Patharkandi. They only knew that they
were students of USTM under the Vision 50 Programme.
v. The said 214 students, also contended that the Invigilators and
Faculty Members had helped 45 local students of Patharkandi when those
students adopted unfair means to write in the examination.
vi. Some students alleged that the USTM authority took Rs.5 Lakh from
each of the aforesaid 45 students so that they can clear the paper.
4. It is alleged by the informant that Bijoy Dutta, Imdadur Rahman, Numan
Ahmed, Rezzak Ali and Hiramoni Saikia had committed conspiracy by taking
₹5,000,00/- from each of the students and without attending any classes by those
students, they were allowed to appear in the examination at Central Public School,
Patharkandi. It is further alleged that these petitioners had violated educational
integrity by committing academic fraud. The informant alleged that these petitioners
cheated the entire education system of CBSE by taking advantage of their positions.
5. Police registered a case being Patharkandi P.S. Case No.54/2025. The petitioners
were arrested by police.
6. After their arrest, on 22.02.2025, they were produced before the court of the
Judicial Magistrate First Class (II), Sribhumi. On being asked by police, they were
remanded to 7(seven) days of police custody.
7. The petitioners pleaded that their arrest and subsequent detention are in
violation of Sections 47 and 48 of the BNSS, 2023. They also pleaded that their arrest
was in violation of Article 22(1) of the Constitution of India. They claim that on what
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ground they were arrested, was not informed to them.
8. In order to buttress his points, Mr. Bora has relied upon the decision of the
Supreme Court that was delivered in Prabir Purkayastha v. State (NCT of Delhi),
(2024) 8 SCC 254. Paragraphs 28, 29, 45 and 48 of the said judgment are quoted as
under:
"28. The language used in Article 22(1) and Article 22(5) of the Constitution of India
regarding the communication of the grounds is exactly the identical. Neither of the
constitutional provisions require that the "grounds" of "arrest" or "detention", as the
case may be, must be communicated in writing. Thus, interpretation to this important
facet of the fundamental right as made by the Constitution Bench while examining the
scope of Article 22(5) of the Constitution of India would ipso facto apply to Article
22(1) of the Constitution of India insofar as the requirement to communicate the
grounds of arrest is concerned.
29. Hence, we have no hesitation in reiterating that the requirement to communicate
the grounds of arrest or the grounds of detention in writing to a person arrested in
connection with an offence or a person placed under preventive detention as provided
under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be
breached under any situation. Non-compliance of this constitutional requirement and
statutory mandate would lead to the custody or the detention being rendered illegal,
as the case may be.
45. We are of the firm opinion that once this Court has interpreted the provisions of
the statute in context to the constitutional scheme and has laid down that the grounds
of arrest have to be conveyed to the accused in writing expeditiously, the said ratio
becomes the law of the land binding on all the courts in the country by virtue of Article
141 of the Constitution of India.
48. It may be reiterated at the cost of repetition that there is a significant difference in
the phrase "reasons for arrest" and "grounds of arrest". The "reasons for arrest" as
indicated in the arrest memo are purely formal parameters viz. to prevent the accused
person from committing any further offence; for proper investigation of the offence; to
prevent the accused person from causing the evidence of the offence to disappear or
tampering with such evidence in any manner; to prevent the arrested person for
making inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the court or to the
investigating officer. These reasons would commonly apply to any person arrested on
charge of a crime whereas the "grounds of arrest" would be required to contain all
such details in hand of the investigating officer which necessitated the arrest of the
accused. Simultaneously, the grounds of arrest informed in writing must convey to the
arrested accused all basic facts on which he was being arrested so as to provide him
an opportunity of defending himself against custodial remand and to seek bail. Thus,
the "grounds of arrest" would invariably be personal to the accused and cannot be
equated with the "reasons of arrest" which are general in nature."
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9. In respect of old section 50 A of the CrPC (new Section 48 of the BNSS 2023),
Mr. Bora relied upon Vihaan Kumar (supra), where it has been held as under--
"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.
10. In Vihaan Kumar (supra), it is further held as under:
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),
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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 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.
25. A contention has been raised in the written argument that the grounds of arrest were
incorporated in the remand report. This contention has been raised for the first time in written
submissions before this Court. This is not pleaded in the reply filed before the High Court and
this Court. The police submit a remand report before the learned Magistrate for seeking
remand without serving a copy thereof to the arrestee. The reason is that the Police cannot
divulge the details of the investigation to the accused till the final report is filed. Mentioning
the grounds of arrest in the remand report is no compliance with the requirement of informing
the arrestee of the grounds of arrest.
26. The stand taken before the High Court was that the appellant's wife was informed
about the arrest. Information about the arrest is completely different from the grounds of
arrest. The grounds of arrest are different from the arrest memo. The arrest memo
incorporates the name of the arrested person, his permanent address, present address,
particulars of FIR and Section applied, place of arrest, date and time of arrest, the name of the
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officer arresting the accused and name, address and phone number of the person to whom
information about arrest has been given. We have perused the arrest memo in the present
case. The same contains only the information stated above and not the grounds of arrest. The
information about the arrest is completely different from information about the grounds of
arrest. Mere information of arrest will not amount to furnishing grounds of arrest."
11. Per contra, Mr. Phukan has objected to this bail applications and relied upon
paragraphs 19 and 26 of Vihaan Kumar (supra), which reads as under:
"19. An argument was sought to be canvassed that in view of sub-Section (1) of
Section 50 of CrPC, there is an option to communicate to the person arrested full particulars of
the offence for which he is arrested or the other grounds for the arrest. Section 50 cannot
have the effect of diluting the requirement of Article 22(1). If held so, Section 50 will attract
the vice of unconstitutionality. Section 50 lays down the requirement of communicating the full
particulars of the offence for which a person is arrested to him. The 'other grounds for such
arrest' referred to in Section 50(1) have nothing to do with the grounds of arrest referred to in
Article 22(1). The requirement of Section 50 is in addition to what is provided in Article 22(1).
Section 47 of the BNSS is the corresponding provision. Therefore, what we have held about
Section 50 will apply to Section 47 of the BNSS.
26. The stand taken before the High Court was that the appellant's wife was informed about
the arrest. Information about the arrest is completely different from the grounds of arrest. The
grounds of arrest are different from the arrest memo. The arrest memo incorporates the name
of the arrested person, his permanent address, present address, particulars of FIR and Section
applied, place of arrest, date and time of arrest, the name of the officer arresting the accused
and name, address and phone number of the person to whom information about arrest has
been given. We have perused the arrest memo in the present case. The same contains only
the information stated above and not the grounds of arrest. The information about the arrest
is completely different from information about the grounds of arrest. Mere information of arrest
will not amount to furnishing grounds of arrest."
12. While opposing another bail application being Bail Application No.563/2025 on
28.02.2025, arising out of the same Patharkandi P.S. Case No.54/2025, Mr. Phukan
has strenuously pressed for calling the Case Diary. Today also, Mr. Phukan has
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reiterated the same plea stating that if the record is called for, his point would be
clearly understood. Mr. Phukan has submitted that no illegality was committed by the
State at the time of the arrest of the aforesaid petitioners.
13. I have considered the submissions made by the learned counsels of both sides.
14. Under the aforesaid circumstances, a brief visit to Sections 47 and 48 of the
BNSS, 2023 would be fruitful, which reads as under:
Section 47. Person arrested to be informed of grounds of arrest and of right to bail.
(1) Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is arrested or
other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person
accused of a non-bailable offence, he shall inform the person arrested that he is
entitled to be released on bail and that he may arrange for sureties on his behalf.
48. Obligation of person making arrest to inform about arrest, etc., to relative or
friend.
(1) Every police officer or other person making any arrest under this Sanhita shall
forthwith give the information regarding such arrest and place where the arrested
person is being held to any of his relatives, friends or such other persons as may be
disclosed or nominated by the arrested person for the purpose of giving such
information and also to the designated police officer in the district.
(2) The police officer shall inform the arrested person of his rights under sub-section
(1) as soon as he is brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such person shall
be made in a book to be kept in the police station in such form as the State
Government may, by rules, provide.
(4) It shall be the duty of the Magistrate before whom such arrested person is
produced, to satisfy himself that the requirements of sub-section (2) and sub-section
(3) have been complied with in respect of such arrested person.
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15. When a person is arrested and produced before a Judicial Magistrate for
remand, it is the legal duty of the Magistrate to ascertain whether compliance of
Article 22 (1) of the Constitution of India was complied with or not. Because its non-
compliance causes the arrest of a citizen of this country illegal and therefore, the
arrested person cannot be remanded to custody.
16. Our legislature has inserted Sections 47 and 48 in the BNSS, 2023 for informing
the arrested person or his relatives or friends or persons nominated by him about the
grounds of arrest, so that they would be able to take immediate and prompt action to
secure the release of the arrested person, as permissible under the law.
17. Article 22(1) and 22(5) of the Constitution of India prescribes that when a
person is arrested in a case, he must be informed about the grounds of his arrest and
that too in writing. The requirement to communicate the grounds of arrest or the
ground of detention in writing to a person arrested in an offence, as provided under
Article 22(1) and 22(5) of the Constitution of India, is sacrosanct and cannot be
breached under any situation. It will not be sufficient to inform that he has been
arrested. He must be informed the grounds for which he was arrested.
18. In the present case, the grounds of arrest were not informed to the petitioners.
This act on the part of the State violates the aforesaid constitutional provisions of our
country. At the time of arrest of the petitioners, the provisions of law, as laid down in
Sections 47 and 48 of the BNSS, 2023, were not complied with.
19. Under the aforesaid premised reasons, this Court is of the opinion that the
learned Public Prosecutor has erroneously interpreted the observations made by the
Supreme Court in Vihaan Kumar (supra). This Court has sufficient reasons to hold that
the prayers made by the petitioners must be accepted under the given circumstances.
20. Therefore, the bail applications of the petitioners are allowed.
21. The petitioners, namely- Bijoy Dutta, Imdadur Rahman, Numan Ahmed, Rezzak
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Ali and Hiramoni Saikia who were arrested in connection with Patharkandi P.S. Case
No.54/2025, are allowed to go on bail of ₹30,000/- each with sureties of like amount
to the satisfaction of the learned Judicial Magistrate First Class (II), Sribhumi
(erstwhile Karimganj).
With the aforesaid direction, the both the bail applications are disposed of.
JUDGE
Comparing Assistant
