Page No.# 1/7 vs The State Of Assam
2025 Latest Caselaw 4882 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam on 21 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                              Page No.# 1/7

GAHC010088922025




                                                                        2025:GAU-AS:6352

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

                             Case No. : Bail Appln./1333/2025

          SUMI BORAH
          W/O TAPAN BORAH
          R/O H. NO. 21,
          NIRIBILI PATH, SUBWAY ANANDA PATH, GHORAMARA, BELTOLA, PS
          BASISTHA, GUWAHATI, KAMRUP (M)

          VERSUS

          THE STATE OF ASSAM
          REPRESENTED BY THE PP, ASSAM


Advocate for the Petitioner : MR. A K BHUYAN, MS B BORA,MR. A KHOUND,MS. N
CHOUDHURY
Advocate for the Respondent : PP, ASSAM,

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

                   For the Petitioner :            Mr. A.K. Bhuyan,
                                                   Advocate.

                   For the Respondent :            Mr. P. Borthakur,
                                                   Addl. P.P., Assam.

                   Date of Hearing  :              06.05.2025.
                   Date of Judgment :              21.05.2025.
                                                                           Page No.# 2/7



                                   O R D E R (CAV)

Heard Mr. A.K. Bhuyan, learned counsel appearing for the petitioner. Also heard Mr. P. Borthakur, learned addl. Public Prosecutor, State of Assam.

2. This is an application under Section 483 of the BNSS, 2023, whereby the petitioner Sumi Borah has prayed for releasing her on bail in respect of Sessions Case No.350/2024 arising out of Borboruah P.S. Case No.85/2024 pending in the court of the learned Sessions Judge, Dibrugarh.

3. When the FIR in respect of Borboruah P.S. Case No.85/2024 was registered, the petitioner Sumi Borah was in judicial custody in respect of Dibrugarh P.S. Case No.352/2024.

4. In the FIR, the informant has alleged that in the year 2021, he came to know a person named Akshay Jain who supplied bakery products to his shop. This Akshay Jain persuaded the informant to invest ₹1000,00/- (Rupees One Lakh) in the company owned by Bishal Phukan. Akshay Jain assured that his investment will yield 30% return over the principal amount. Therefore, the informant invested 50,000/- rupees in the year 2021. The money was handed over to Akshay Jain for depositing the same in the company of Bishal Phukan.

5. In the middle part of 2023, Akshay Jain informed the informant that his money has grown to ₹5,00,000/- (Rupees Five Lakh). By that time, said Bishal Phukan had already introduced the informant to his associates Sumi Borah and other persons.

6. In the month of August, 2023, the informant again invested another amount of ₹50,000/- in the company of Bishal Phukan.

7. In early 2024, the informant wanted to withdraw his total investments, which purportedly grown to ₹6,00,000/- (Rupees Six Lakh). Bishal Phukan and his associates refused to return the money.

8. After registration of the said FIR, being Borboruah P.S. Case No.85/2024, the Page No.# 3/7

Investigating Officer filed an application before the court of the learned Sessions Judge, Dibrugarh seeking permission to arrest the present petitioner. Permission was granted. The petitioner was shown as arrested in Borboruah P.S. Case No.85/2024.

9. In order to buttress his point, Mr. Bhuyan has relied upon two decisions of the Hon'ble Supreme Court that were delivered in Vihaan Kumar vs. State of Haryana & Anr., reported in 2025 SCC OnLine 269 and Dhanraj Aswani vs. Amar S. Mulchandani & Anr., reported in (2024) 10 SCC 336.

10. 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 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.

11. 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 Page No.# 4/7

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 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 Page No.# 5/7

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."

12. 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."

13. I have given my anxious considerations to the submissions made by the learned counsel of both sides.

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.

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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. When a person is already in custody in connection with an offence, if he is arrested in another case, 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.

16. Therefore, before arresting a person in a case, who is already in custody in another case, the procedure as laid down in Sections 47 and 48 of the BNSS, 2023 are to be complied with. Article 22 of the Constitution of India makes it mandatory to follow the said law. Any departure from those provisions would be illegal.

17. In the case in hand, at the time of arrest of the petitioner Smti. Sumi Borah, the said provisions were not complied with. Therefore, the detention of the petitioner Sumi Borah in Borboruah P.S. Case No.85/2024 is bad in law.

18. For the aforesaid premised reasons, the bail application of Sumi Borah is Page No.# 7/7

allowed. The petitioner Smti. Sumi Borah who is facing trial in Sessions Case No.350/2024 arising out of Borboruah P.S. Case No.85/2024 pending in the court of the learned Sessions Judge, Dibrugarh shall be released on bail of ₹25,000/- (Rupees Twenty-Five Thousand) with a surety of like amount to the satisfaction of the said court i.e. Sessions Judge, Dibrugarh.

19. The petitioner Smti Sumi Borah is directed to be present on each and every date of hearing of the case before the trial court. If she fails to be present on each and every date of hearing before the trial court, without showing satisfactory reasons, the trial court shall have the liberty to procure her attendance in accordance with the procedure as laid down by law.

With the aforesaid direction, the bail petition is disposed of.

JUDGE

Comparing Assistant