Page No.# 1/9 vs The State Of Assam
2025 Latest Caselaw 6919 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 2 September, 2025

                                               Page No.# 1/9

GAHC010109932025




                                                                  2025:GAU-AS:12043

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

                               Case No. : Bail Appln./1688/2025

            ABHISHEK BARUAH
            S/O- LATE BINOY BARUAH.
            R/O- NARENGI BIRKUCHI, OIL GATE NO.3, H.NO.15.
            P.S.- NOONMATI, DIST.- KAMRUP(M), ASSAM.

            PERMANENT ADDRESS.
            R/O- TANGLA JALUKBARI, NEAR PANITENKI.
            P.S.- TANGLA, DIST.- UDALGURI, ASSAM.



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PP, ASSAM



Advocate for the Petitioner   : MR D MEDHI, MR. J N SUWAI,MR K THAKUR,MR. S SARKAR

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

02.09.2025

1. Heard Mr. K. Thakur, the learned counsel for the petitioner. Also heard Mr. K.K. Parasar, the learned Additional Public Page No.# 2/9

Prosecutor, appearing for the State of Assam.

2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita(BNSS), 2023 has been filed by the petitioner, namely, Abhishek Baruah, who has been detained behind the bars since 09.08.2023(for the last 755 days), in connection with Sessions Case No. 231/2023, arising out of Basistha P.S. Case No. 474/2023 under Sections 364(A)/302/201 of the Indian Penal Code, 1860.

3. The learned counsel for the petitioner submits that the petitioner is facing a trial before the Court of the learned Additional District and Sessions Judge No. 3, Kamrup(M), Guwahati under Sections 302/201/364(A) of the Indian Penal Code, 1860.

4. On the last date, this Court directed the Trial Court to furnish a status report regarding the stage of the trial. Accordingly, the Trial Court has furnished a status report.

5. On perusal of the same, it appears that out of 39(thirty- nine) listed prosecution witnesses, only 5(five) prosecution witnesses are examined till date and there are 3(three) more witnesses, namely, Rajen Pradhan, Kaberi Gogoi, Tulsiram Neupare, who are stated to be eye-witnesses and who have not yet been examined by the Trial Court.

6. The learned counsel for the petitioner has submitted that the petitioner has been languishing behind the bars for more Page No.# 3/9

than 2(two) years and out of 39(thirty-nine) listed prosecution witnesses, only 5(five) have been examined till date. He also submits that the petitioner has approached this Court seeking bail mainly on the ground of violation of his Fundamental Rights guaranteed to him under Article 22(1) of the Constitution of India.

7. He submits that in this case at the time of his arrest though notice under Section 50 of the Cr.P.C., 1973 was served on him, however, it does not contain the basic facts which necessitated the arrest of the petitioner in the aforesaid case.

8. The learned counsel for the petitioner submits that the Apex Court in the case of "Vihaan Kumar Vs. State of Haryana and Another" reported in "(2025) 5 SCC 799"

has observed that communicating the grounds of arrest in writing to an arrestee at the time of his arrest is a mandatory constitutional requirement and any infringement of the said requirement would amount to infringement of the Fundamental Rights of such an arrestee which would render the arrest of such an arrestee illegal and on that ground, he may be allowed to go on bail.

9. It is also submitted that by the learned counsel for the petitioner that while communicating the grounds of arrest to an arrestee basic facts which necessitated the arrest must be communicated to him, which has not been done in the instant case. Hence, he is entitled to get bail in this case.

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10. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner. He submits that in this case an innocent child was kidnapped and murdered and there are sufficient incriminating materials against the petitioner on record.

11. He submits that out of the 5(five) prosecution witnesses, who have already been examined by the Trial Court, the PW-2 has categorically deposed that he saw the petitioner with a dagger on the date of occurrence of offence, while entering into a jungle from where the dead body of the deceased was later on found.

12. He further submits that in this case, 3(three) more eye-witnesses are yet to be examined, and if the petitioner is allowed to go on bail at this stage, there is every likelihood that he would threaten the witnesses and may influence those witnesses.

13. He has also submitted that in this case notice under Section 50 was served on the petitioner, however, it does not contain in detail the basic facts which necessitated his arrest.

14. He further submits that at the time of production of the petitioner before the Magistrate after his arrest in the forwarding report grounds of arrest were mentioned in detailed in the said forwarding report.

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15. He also submits that the petitioner has failed to show any prejudice caused to him due to non-furnishing of ground of arrest to him in detail and therefore, he opposes the grant of bail to the present petitioner.

16. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record, including the scanned copy of the records of the Sessions Case No. 231/2023. Though the accusation made against the present petitioner are very serious in nature, and this case involves unfortunate incident of kidnapping and killing of an innocent child, however, the fact remains until the accusation are truth in the trial, the petitioner would be deemed to be an innocent.

17. Considering the nature of the accusation levelled against the petitioner, it was incumbent on the arresting authority to strictly follow all the mandatory procedural requirements at the time of the arrest of the petitioner. However, in the instant case, on perusal of the copy of the notice under Section 50 of the Cr.P.C. which is available in the case record, it appears that same does not contain basic facts which necessitated the arrest of the petitioner in this case.

18. The Apex Court in the case of "Vihaan Kumar Vs. State of Haryana and Another" (supra) has observed as follows:-

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"26.1. The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

26.2. 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;

26.3. 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);

26.4. 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 Page No.# 7/9

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 charge-sheet will not validate a breach of constitutional mandate under Article 22(1);

26.5. 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

26.6. 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."

19. In cases in which offences of serious nature are involved, it is incumbent on the police/arresting authority to meticulously follow the mandatory procedure prescribed by the statue as well as by the Constitution of India so that due to non following of the said procedure, the accused in such cases does not get benefit of bail. However, where the infringement Page No.# 8/9

of a Fundamental Rights of the petitioner are apparent from record, there is no option for this Court, but to follow the mandate of the Apex Court as discussed hereinabove, in the aforesaid judgment of "Vihaan Kumar Vs. State of Haryana and Another" (supra).

20. For the reasons discussed in the foregoing paragraphs, the above-named petitioner is allowed to go on bail of Rs. 50,000/-(Rupees Fifty Thousand only) with a suitable surety of like amount, subject to the satisfaction of the learned Chief Judicial Magistrate, Kamrup(M), Guwahati with following conditions that:-

i. That the petitioner shall cooperate in the trial of Sessions Case No. 231/2023, arising out of Basistha P.S. Case No. 474/2024, under Sections 364(A)/302/201 of the Indian Penal Code, 1860.

ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court;

iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner;

iv. That the petitioner shall provide his contact details including photocopies of his Aadhaar Card or Driving License or PAN card, mobile number, and other contact details before the Page No.# 9/9

Trial Court;

v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; and

vi. That the petitioner shall not commit any offence while on bail.

21. Violation of any of the above-mentioned conditions would be a good ground for cancellation of bail of the present petitioner.

22. With the above observation, this bail application is accordingly, disposed of.

JUDGE

Comparing Assistant