Gauhati High Court

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

                                                                          Page No.# 1/8

GAHC010062332025




                                                                2025:GAU-AS:5331

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

                              Case No. : Bail Appln./888/2025

           SADIKUL ISLAM AND ANR
           S/O- SEKOT ALI, R/O- BORSOLA TORIPAM, P.S- DHEKIAJULI, DIST-
           SONITPUR, ASSAM

           2: SEKOT ALI
            S/O- LATE ABDUL AZID
            R/O- BORSOLA TORIPAM
            P.S- DHEKIAJULI
            DIST- SONITPUR
           ASSA

           VERSUS

           THE STATE OF ASSAM AND ANR
           REPRESENTED BY P.P. ASSAM

           2:SMTI SHARIFA PARBIN
            D/O- LATE KETAB ALI
            R/O- DIKARAIJAN
            NA-PAM
            P.S- TEZPUR
            DIST- SONITPUR
           ASSAM. PIN- 78411

Advocate for the Petitioner : MR S M ABDULLAH P, MD IMRAN,MD R ISLAM,MS F
HUSSAIN,MR. S RAHMAN

Advocate for the Respondent : PP, ASSAM,
                                                                        Page No.# 2/8


                                BEFORE
                 HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                 ORDER

01.05.2025

Heard Mr. S. M. Abdullah P., learned counsel for the petitioners. Also heard Mr. D. P. Goswami, learned Additional Public Prosecutor for the State respondent.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioners, who have been arrested in connection with Dhekiajuli P. S. Case No. 72/2025, registered under Section 64(1) BNS read with Sections 6/17 of POCSO Act, read with Sections 9/10/11 of the Prevention of Child Marriage Act.

3. Scanned copy of the case record along with the case diary as called for has already been received and I have perused the same.

4. It is informed by the learned Additional Public Prosecutor, Mr. Goswami, that the notice has already been served to respondent No. 2.

5. In this context, Mr. Abdullah P., learned counsel for the petitioners, has submitted that respondent No. 2/informant/victim, is the wife of petitioner No. 1, and it is unlikely that she will appear before the Court and petitioner No. 2 is her father-in-law. The case involves allegations of child marriage against present petitioners. He further submitted that apart from the other grounds, he raised the issue of the non-furnishing of the grounds of arrest to the petitioners at the time of issuing notices under Sections 47 and 48 of the BNSS, which is mandatorily required and non-compliance of the same is in violation of Articles Page No.# 3/8

21 & 22(1) of the Constitution of India. He further submitted that due to non- mentioning of grounds of arrest in the Arrest Memo as well as in the Notice under Section 47 of BNSS, the arrest and the remand itself is illegal. 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 them at the time of their 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. Abdullah P., learned counsel for the petitioner, 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. Goswami, learned Additional Public Prosecutor, submitted in this regard that there are sufficient incriminating materials in the statement recorded by the victim under Section 183 of the BNSS. As per the allegation, she was a minor at the relevant time of the incident when she was raped by petitioner No. 1. 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 were informed about the grounds of arrest orally during investigation and hence, he raised objection in granting bail to the accused/ petitioner at this stage.

8. After hearing the submissions made by the learned counsels for both Page No.# 4/8

sides, I have also perused the case record as well as the case diary, more particularly, the Arrest Memo and the Notice issued to the present accused/petitioners under Section 47/48 of BNSS. It is accordingly seen that while issuing the said Notice, though the name and the address of the accused/petitioners along with the case number as well as the Section under which he was arrested is being mentioned, but admittedly there is no mention about the grounds of arrest in the Notice. Thus, it is the admitted position that the grounds of arrest was not intimated to the accused/petitioners or to their family members at the time of their 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.

9. It is the contention of the petitioners 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/petitioners invalid. The accused/petitioners has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest has 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.

10. 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 Nos. 19, 21 & 48 of the judgment as under:

"19. Resultantly, there is no doubt in the mind of the Court that any Page No.# 5/8

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 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 Page No.# 6/8

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."

11. 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 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."

12. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as in the Notices issued Page No.# 7/8

to the present accused/petitioner under Section 47 of BNSS and except the name, addresses and the case number, 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 of BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India.

13. In view of the entire discussions made above, it is the opinion of this Court that considering the fact that the grounds of arrest was not communicated to the petitioners or mentioned in the Arrest Memos as well as in the Notice 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.

14. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only each with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, Sonitpur, Tezpur, the accused/petitioners, namely, Sadikul Islam and Sekot Ali, be enlarged on bail, subject to the following conditions:

(i) that the petitioners shall appear before the Court of learned Special Judge, Sonitpur, Tezpur, on each and every date to be fixed by the Court;

(ii) that the petitioners 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 them from disclosing such facts to the Court or to any police officer;