Gauhati High Court

Page No.# 1/8 vs The State Of Assam And Anr on 14 May, 2025

                                                                      Page No.# 1/8

GAHC010087832025




                                                               2025:GAU-AS:5943

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

                          Case No. : Bail Appln./1326/2025

          MD ABU SALIM
          S/O- MD. MOKFEL ALI.
          VILL- NO.4 KUMOLIA,
          P.S- BISWANATH CHARIALI,
          DIST.- BISWANATH, ASSAM.
          PIN-784176



          VERSUS

          THE STATE OF ASSAM AND ANR
          REPRESENTED BY THE PP, ASSAM

          2:MD. NUR ISLAM
           S/O- LATE ABDUL RAHMAN
          VILL- NO.4 KUMOLIA

          P.S- BISWANATH CHARIALI
          DIST- BISWANATH
          ASSAM
          PIN-78417

Advocate for the Petitioner : MR H R A CHOUDHURY, R. DEKA,MR. SAYED SALIM
AHMED,MR. I U CHOWDHURY

Advocate for the Respondent : PP, ASSAM, MR D K BHATTACHARYYA, (AMICUS CURIAE, R-
2)
                                                                       Page No.# 2/8

                                BEFORE
                 HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                 ORDER

14.05.2025 Heard Mr. H. R. A. Choudhury, learned Senior Counsel assisted by Ms. R. Deka, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent No.1 and Mr. D. K. Bhattacharyya, learned Amicus Curiae for the respondent No.2.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special POCSO Case No.15/2025 arising out of Biswanath Chariali P. S. Case No. 34/2025, registered under Sections 329(4)/64(1) of BNS read with Section 4 of the POCSO Act.

3. The Case Diary as called for, has not yet been received.

4. It is submitted by Mr. Choudhury, learned Senior Counsel, that the present accused/petitioner was arrested on 18.02.2025 and has been in custody for the last 85 days. He further submits that it is a fact that there was a relationship between the accused/petitioner and the victim, who was asked by the petitioner to wait until she attained the age of 18 years for marriage. However, on that account, an FIR was lodged against him containing false and concocted allegations. Therefore, considering the length of his detention, it is prayed that he may be released on bail, as the Investigating Officer got ample opportunity to interrogate the petitioner keeping him in custody.

5. Mr. Choudhury further raised the issue of the grounds of arrest were also not mentioned in the Notices issued to him under Sections 47/48 of BNSS, Page No.# 3/8

which is mandatorily required and non-compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the accused, should be informed to him at the time of his arrest and otherwise it would be against the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself.

6. In this context also, Mr. Choudhury, learned Senior Counsel, cited the following decisions:

(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.

7. Mr. Lahkar, learned Additional Public Prosecutor, has submitted that the case pertains to the POCSO Act, and therefore, the length of detention may not be a relevant consideration at this stage. He also submitted that there may not be any written communication for grounds of arrest, but from the materials available in the case record, it is very much evident that the accused was informed about the grounds of arrest orally during investigation and hence, he raised objection in granting bail to the accused/ petitioner.

8. On the other hand, Mr. Bhattacharyya, learned Amicus Curiae, has submitted that at the relevant time of the incident, the victim was a minor. Therefore, he submits that the length of detention may not be a relevant consideration, as the case falls under the provisions of the POCSO Act. Accordingly, he has raised an objection to the grant of bail to the Page No.# 4/8

accused/petitioner at this stage.

9. After hearing the submissions made by the learned counsels for both sides, I have also perused the annexures filed along with the petition, more particularly; the Notices issued to the present accused/petitioner under Section 47/48 of BNSS. It is accordingly seen that while issuing the said Notices, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notices. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police.

10. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 47/48 of BNSS rendering the arrest and subsequent remand of the accused/petitioner invalid. The accused/petitioner has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest have to be furnished to the arrested person as a matter of course and without any explanation. Non-supply of written grounds of arrest to the arrested accused/ petitioner would vitiate the arrest even if the case has been charge- sheeted.

11. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioner, has held in paragraph No. 19, 21 and 48 of the judgment as under:

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"19. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail.

Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India.

21. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality 3 (2000) 8 SCC 590committed at the time of arresting the accused and the grant of initial police custody remand to the accused.

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 Page No.# 6/8

accused person from causing the evidence of the offence to disappear or tempering 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."

12. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court has held has under:

"14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as Page No.# 7/8

provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second."

13. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notices issued to the present accused/petitioner under Section 47/48 of BNSS and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 47/48 of BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India and in such cases.

14. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage as the charge already been framed and the trial is about to commence. However, considering the fact that the grounds of arrest were not communicated to the petitioner or Page No.# 8/8

mentioned in the Notices issued to the present accused/petitioner under Section 47/48 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

15. Accordingly, it is provided that on furnishing a bond of Rs. 30,000/- (Rupees thirty thousand) only with 1 (two) surety of like amount to the satisfaction of the learned Special Judge, Biswanath, Biswanath Chariali, the accused/petitioner, namely, Md. Abu Salim, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall make himself available for interrogation by the Investigating Officer as and when required;

(ii) that 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 the Court or to any police officer;