Gauhati High Court
Tapan Borah @ Tarkik vs The State Of Assam on 1 May, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/10
GAHC010058202025
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./823/2025
TAPAN BORAH @ TARKIK
S/O- SRI ARUN KR BORAH,
R/O H. NO. 21 NIRIBILI PATH, BYE LANE ANANDA PATH, GHORAMARA,
P.S. BASISTHA,
GUWAHATI, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR S BORTHAKUR, MR SAURADEEP DEY
Advocate for the Respondent : PP, ASSAM,
Linked Case : Bail Appln./1062/2025
BISHAL PHUKAN
S/O LATE BIPIN CHANDRA PHUKAN
R/O F. NO. BISHNU 503
PRABHANJALEE RESIDENCY
BISHNU NAGAR
UNDER DIBRUGARH PS
DIST.- DIBRUGARH
ASSAM.
Page No.# 2/10
VERSUS
THE STATE OF ASSAM
REP BY THE PP
ASSAM
------------
Advocate for : MR. D K BAIDYA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
:: PRESENT ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioners : Mr. S. Borthakur,
Advocate
Mr. D.K. Baidya,
Advocate.
For the Respondent : Mr. P. Borthakur,
Addl. P.P., Assam.
Date of Hearing : 29.04.2025.
Date of Judgment : 01.05.2025.
O R D E R (CAV)
Heard Mr. S. Borthakur, learned counsel appearing for the petitioner in Bail
Application No.823/2025 as well as Mr. D.K. Baidya, the learned counsel representing
the petitioner in Bail Application No.1062/2025. Also heard Mr. P. Borthakur, the
learned Addl. Public Prosecutor, Assam.
2. Both these bail applications were earlier dealt with by a co-ordinate Bench of this
Court. Therefore, according to the decision of the Hon'ble Supreme Court that was
rendered in Writ Petition (Criminal) No.55/2025, these two bail applications should
have been listed before that Bench. According to the Notification No.12 dated
Page No.# 3/10
12.02.2025, which is based on the said judgment of the Supreme Court, the aforesaid
rule is not applicable if the previous Bench is not holding Criminal Roster. Therefore,
these two applications are listed before this Bench holding Criminal Roster.
3. The aforesaid two bail applications are filed under Sections 483(1) of the BNSS,
2023 in respect of Sessions Case No.350/2024 pending in the court of learned
Sessions Judge, Dibrugarh.
4. Prior to 19.09.2024, both the petitioners were in judicial custody in respect of
Dibrugarh P.S. Case No.352/2024. On 19.09.2024, Smti Deepti Baruah had lodged an
FIR before police and the said FIR was registered as Borboruah P.S. Case No.85/2024.
It was alleged in the said FIR that a person called Akshay Jain told her to invest
₹100,000/- (Rupees One Lakh) in the company owned by the petitioner Bishal
Phukan. She was assured that her money would yield 30% profit. Accordingly, Smti
Deepti Baruah deposited ₹50,000/- in the year 2021. She handed over the money to
Akshay Jain.
5. After few months, Akshay Jain informed her that her money has grown to
₹500,000/- (Rupees Five Lakh). In the meantime, Bishal Phukan introduced the
petitioner Sri Tapan Borah @ Tarkik and Smti. Sumi Borah to Deepti Baruah. They
persuaded Deepti Baruah to invest more money. Accordingly, in the year 2023, she
deposited another amount of ₹50,000/- (Rupees Fifty Thousand).
6. In the year 2024, Smti Deepti Baruah wanted to withdraw ₹600,000/- (Rupees
Six Lakh) from the company of Bishal Phukan. He refused to give back the money.
7. After registration of this case, Sub-Inspector Rituraj Das of Borboruah Police
Station filed an application before the Sessions Judge, Dibrugarh praying for showing
the present two petitioners as arrested in respect of Borboruah P.S. case No.85/2024.
Permission was granted and the petitioners Bishal Phukan and Sri Tapan Borah @
Tarkik were arrested.
8. After conclusion of investigation, charge sheet was filed and the trial is now
Page No.# 4/10
going on. The trial court has already examined Smti Deepti Baruah (Deori), the
informant.
9. By filing these two applications, the petitioners have claimed that before showing
them as arrested, Sections 47 and 48 of the BNSS, 2023 were not complied with, thus,
the provisions of Article 22(1) and (5) of the Constitution of India have been violated.
10. In order to buttress his point, Mr. Borthakur has relied upon the decision in
Vihaan Kumar vs. State of Haryana & Anr., reported in 2025 SCC OnLine 269.
11. Mr. Baidya has relied upon the judgment of the Supreme Court that was
delivered in Dhanraj Aswani vs. Amar S. Mulchandani & Anr., reported in (2024) 10
SCC 336.
12. I have considered the submissions made by the learned counsel of both sides.
13. In our country, the personal liberty of a citizen cannot be curtailed by any
authority without following the due process of law. Article 22(1) and (5) of the
Constitution of India prescribes that when a person is arrested in a case, he must be
informed about the reasons for his arrest and that too in writing. The requirement to
communicate the reasons of arrest or the grounds of detention in writing to the
person arrested in an offence, is sacrosanct according to Article 22(1) and (5) of the
Constitution of India.
14. Now, Sections 47 and 48 of BNSS, 2023 comes into play. They read 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.
Page No.# 5/10
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.
15. In respect of old Section 50 A of the CrPC (new Section 48 of the BNSS 2023), in
Vihaan Kumar (supra), 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
Page No.# 6/10
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.
16. 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),
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
Page No.# 7/10
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
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."
17. In Dhanraj Aaswani (supra), it has been held as under:
"65.3. While a person already in custody in connection with a particular offence
apprehends arrest in a different offence, then, the subsequent offence is a separate
offence for all practical purposes. This would necessarily imply that all rights conferred
by the statute on the accused as well as the investigating agency in relation to the
subsequent offence are independently protected."
18. The learned Addl. Public Prosecutor Mr. Borthakur has submitted that when the
petitioners were first produced before the Magistrate after they were shown as
arrested in this case, they had raised these issues before the Magistrate and therefore,
Page No.# 8/10
the petitioners are not entitled to raise those issues now before this Court.
19. This Court is of the opinion that everyone connected with the system of
enforcement of law in our country must follow the Constitution of India and the laws
enacted by our Parliament.
20. In Paragraphs 28, 29, 45 and 48 of Prabir Purkayastha v. State (NCT of Delhi),
(2024) 8 SCC 254, the Hon'ble Supreme Court has laid down 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
Page No.# 9/10
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."
21. When a person is in judicial custody in respect of a particular case, if he is
arrested in another case, the same law will be applicable. Article 22(1) and (5) of the
Constitution of India as well as Sections 47 and 48 of the BNSS, 2023 will be
applicable. This is the law laid down in Dhanraj Aswani (supra). According to Article
141 of the Constitution of India, the decision of the Supreme Court is the law of the
land and it has to be followed by everybody.
22. While the petitioners Bishal Phukan and Sri Tapan Borah @ Tarkik were shown as
arrested, the mandatory provisions of law were not complied with. Therefore, their
arrest and detention in Borboruah P.S. Case No.85/2024 is bad in law.
23. Apart from the aforesaid facts, it may be mentioned here that the trial court has
already examined the complainant Smti Deepti Baruah (Deori) and discharged her
after cross-examination. I have gone through her evidence supplied by the petitioners.
24. Since, this Court has already held that the arrest of Bishal Phukan and Sri Tapan
Borah @ Tarkik in respect of Borboruah P.S. Case No.85/2024 is bad in law, they do
not deserve to be detained in judicial custody for any further period of time.
Page No.# 10/10
25. Both the bail applications are allowed.
26. The petitioners Bishal Phukan (in Bail Application No.1062/2025) and Sri Tapan
Borah @ Tarkik (in Bail Application No.823/2025) who were arrested in respect of
Borboruah P.S. Case No.85/2024 and who are facing trial in Sessions Case
No.350/2024, shall be released on bail of ₹1000,00/- (Rupees One Lakh) each with
sureties of like amount to the satisfaction of the learned Sessions Judge, Dibrugarh.
27. Both the petitioners Bishal Phukan and Sri Tapan Borah @ Tarkik are directed to
appear before the trial court on each and every date fixed by the trial court. If they
fail to appear before the trial court without showing satisfactory reason, learned
Sessions Judge, Dibrugarh shall have the liberty to procure their attendance in
accordance with the procedure as laid down by law.
28. With the aforesaid directions, both the bail applications are disposed of.
JUDGE
Comparing Assistant
