Gauhati High Court
Page No.# 1/6 vs The State Of Assam on 15 May, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/6
GAHC010100772025
2025:GAU-AS:6021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1536/2025
SRI MITHUN DAS
S/O- SRI NANDALAL DAS,
R/O- VILLAGE- NO 2, RAJAGARH, DIMAKUCHI,
DIST.- UDALGURI, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP ASSAM
Advocate for the Petitioner : MR. A BHATTACHARYA, MR. S. BASAK.,MS ANKITA
SAHARIA,MR S PAUL,MS. K MALAKAR,MR. A BHATTACHARJEE
Advocate for the Respondent : PP, ASSAM,
:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
15.05.2025
Heard Mr. A. Bhattacharyya, the learned counsel appearing for the petitioner.
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Also heard Mr. D.P. Goswami, the learned Addl. Public Prosecutor, Assam.
2. This is the second application under Section 483 of the BNSS, 2023 praying for
regular bail to the petitioner Sri Mithun Das who is facing trial in Sessions (I) Case
No.07/2025 pending in the court of Addl. Sessions Judge, Udalguri.
3. The earlier bail application was rejected by this Court in Bail Application
No.453/2025. This time, the petitioner has pointed out that the notice served upon
him under Section 47 of the BNSS, 2023 was not in compliance with the provision of
Article 22 of the Constitution of India.
4. The judgment of the Hon'ble Supreme Court that was delivered in Vihaan Kumar
vs. State of Haryana & Anr., reported in 2025 SCC OnLine 269 was also referred to by
the petitioner.
5. In order to buttress his points, Mr. Bhattacharyya 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
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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."
6. In respect of old section 50 A of the CrPC (new Section 48 of the BNSS 2023),
Mr. Bhattacharyya 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
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effective failing which, such arrest may be rendered illegal.
7. 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
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.
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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."
8. I have considered the submissions made by the learned counsel of both sides.
9. In the notice under Section 47 of the BNSS, 2023, it was mentioned that he was
arrested in connection with Dimakuchi P.S. Case No.55/2024 and since the offences
are non-bailable, he would be forwarded to the court of the Chief Judicial Magistrate,
Udalguri, Assam on 30.11.2024. It was also stated in the said notice that the
petitioner may move the court of the Chief Judicial Magistrate seeking bail.
10. The purpose of insertion of Sections 47 and 48 into the BNSS, 2023 is to inform
the arrested person so that he can inform about his arrest to his friends, relatives or
persons nominated by him so that they would be able to take immediate and prompt
action to secure the release of the arrest person as permissible under the law. The
arrested person, because of his arrest and detention, may not have immediate and
easy access to the legal process for securing his release, which would be otherwise,
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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 is not
merely a formality but it is a guarantee under the Constitution of India. It is a
fundamental right under Article 21 of the Constitution of India. The requirement of
communicating the grounds of arrest in writing is a must according to the Constitution
of India.
11. For the aforesaid reasons, the detention of the petitioner in judicial custody is
bad in law.
12. His bail application is allowed. The petitioner Sri Mithun Das shall be released on
bail of ₹50,000/- to the satisfaction of the learned Addl. Sessions Judge, Udalguri.
13. It is also directed that the petitioner Mithun Das shall on each and every date of
hearing of the case be present in the court regularly. If he fails to appear on each and
every date of hearing, without showing a satisfactory reason, the trial court shall have
the liberty to procure his attendance by exercising due process of law.
With the aforesaid direction, the bail application is disposed of.
JUDGE
Comparing Assistant
