Gauhati High Court

Abdul Sheikh @ Abdul Saikh vs The State Of Assam And Anr on 26 November, 2025

                                                                         Page No.# 1/6

GAHC010229852025




                                                                  undefined

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

                               Case No. : Bail Appln./3373/2025

            ABDUL SHEIKH @ ABDUL SAIKH
            S/O. MD. HURMAT ALI, R/O. VILL.- NO. 2 KUMOLIA, P/O. PANIBHARAL,
            PIN-784176, P/S. BISWANATH CHARIALI, DIST. BISWANATH, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP BY THE PP, ASSAM

            2:MAMINUL HAQUE
             S/O. LT. JAMRUL HAQUE
             R/O. VILL.- NO. 2
             KUMOLIA
             P/O. PANIBHARAL
             PIN-784176
             P/S. BISWANATH CHARIALI
             DIST. BISWANATH
            ASSAM

Advocate for the Petitioner   : MS M NIROLA, MR. P BORDOLOI

Advocate for the Respondent : PP, ASSAM, MR. G PHUKAN (R-2)
                                                                         Page No.# 2/6

                                       BEFORE

                   HON'BLE MR. JUSTICE PRANJAL DAS

                                      ORDER

26.11.2025

Heard Mr. P. Bordoloi, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned Additional Public Prosecutor for the State respondent and Mr. G. Phukan, learned counsel for the respondent no.2/informant.

2. By invoking the provisions of Section 483 of the BNSS, 2023 the accused petitioner Abdul Sheikh @ Abdul Saikh is seeking regular bail in connection with Special (POCSO) Case No. 77/2025 under Section 6 of the POCSO Act, 2012, arising out of Biswanath Chariali P.S. Case No. 136/2025 and pending before the Court of the learned Special Judge, Biswanath, Biswanath Chariali.

3. The allegation in the FIR lodged by the brother of the victim girl is that the said accused taking advantage of a love relationship with the victim girl aged 13 years engaged in physical relationship leading to her pregnancy. The case is stated to be at the stage of trial.

4. The learned counsel submits that without going into the merits of the matter he is aggrieved by the non compliance with the requirements of notice under Section 36 of the BNSS, which stipulates that the arrest memo has to be signed by witnesses or relatives or respectable persons of locality and that in the instant case apart from the police official no other persons have signed the same.

5. A copy thereof has been annexed with the bail petition has been received. The scanned record has been received heard.

Page No.# 3/6

6. The learned Public Prosecutor submits that the victim girl is not yet examined and perhaps the bail can be considered only thereafter.

7. Mr. Phukan, learned counsel for the informant also adopts the said submission of the prosecution. It is submitted by the learned council for the respondent responder to informant that the accused is the cousin brother of the victim and they were living in the same campus.

8. I have carefully perused the relevant portions of the scanned record and apparently, the notice under Section 36 of BNSS purportedly given to the accused at the time of the arrest does not been signatures of any other persons or relatives.

9. The learned counsel for the petitioner has referred to the seminal judgment of the Hon'ble Supreme Court rendered in the case of D.K. Basu Vs State of W.B. reported in AIR 1997 SC 610. The relevant para-36 of D.K. Basu (supra) may be reproduced herein below:-

"36. We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

Page No.# 4/6

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

Page No.# 5/6

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board."

10. Thus, I find from the above that, as per direction given in Para- 36 (2), the arresting Police Officer has to prepare a memo of arrest, which has to be signed by at least one witness who may be a family member of the arrestee or a respectable person of the locality. Such arrest memo also has to be countersigned by the arrestee and indicate the date and time of arrest.

11. It has been held in D.K. Basu (supra) that these requirements which have been directed vide para-36 also flow from Article 21 and 22(1) of the Constitution of India and are required to be followed strictly.

12. The relevant Para 38 may be reproduced here:-

"The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier."

13. In the instant case, though notices under section 47/48 BNSS have duly conveyed the grounds of arrest, but the notice under Section 36 BNSS, apparently suffers from a deficiency in as much as it does not bear signatures of anyone other than the accused and the police officer.

14. Though, I find force in the contention of the prosecution and the informant side that the bail should be considered only after examination of the victim; but in view of the deficiency in the aforesaid Section 36 notice and its linkage with the constitutional provisions, as mandated in D.K. Basu (supra) - I am of the considered view that the accused has to be granted bail at this stage.

Page No.# 6/6

15. Accordingly, in the given facts and circumstances, the accused person herein is allowed to go on bail of Rs. 50,000/- with one surety of like amount to the satisfaction of the learned concerned Court and subject to the following conditions that:-