[Cites 3, Cited by 0]
Gauhati High Court
Page No.# 1/5 vs The State Of Assam And Anr on 13 February, 2026
Page No.# 1/5
GAHC010241842025
2026:GAU-AS:2126
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3537/2025
SAHIDUL ISLAM ALIAS SHOHIDUL ISLAM
SON OF ALTAB HUSSAIN
R/O VILL. CHIRAKHOWA, PT. IV, P.S. FAKIRGANJ, DIST. DHUBRI (SOUTH
SALMARA)
MOBILE NO. 7664010670
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM.
2:ASMOT ALI (INFORMANT)
S/O LATE ABDUL JALIL
R/O VILL- MAYAR CHAR
PART-I
(GHUMNIMARI)
P.O. BILASIPARA
P.S. BILASIPARA
DIST. DHUBRI
ASSAM
MOBILE NO. 936521774
Advocate for the Petitioner : MR. A K AHMED, MR. Y ALI
Advocate for the Respondent : PP, ASSAM, MR. S DAS, AMICUS CURIAE FOR R-2
Page No.# 2/5
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
Date : 13-02-2026
Heard Mr. N. J. Dutta, learned counsel appearing for the accused applicant
and Mr. R. J. Baruah, learned Additional Public Prosecutor for the State.
2. This is an application under Section 483 of the BNSS, 2023 for granting
bail to the accused applicant, who is in custody since 08.09.2025, in connection
with Bilasipara P.S. Case No. 295/2025 under sections 137(2)/127(2)/65(1) of
the BNS, 2023 read with section 4 of the POCSO Act.
3. The allegation as alleged in the FIR dated 08.09.2025, inter alia, is that on
07.09.2025, at 7 PM, the minor niece of the informant, aged about 13 years 2
months, while coming home, the accused applicant allegedly induced her to
come with him and thereafter, taking her to a bamboo field, forcefully
committed rape. It was also alleged that on 08.09.2025 also, the accused
applicant had committed rape on her.
4. On receipt of the FIR, the police registered the Bilasipur P.S. Case No.
295/2025 under the aforementioned sections. The accused applicant was
arrested on 08.09.2025 and since then, he is behind the bar. After completion of
the investigation, the police filed the charge-sheet being 281/2025, dated
23.10.2025 before the Special Judge Bilasipur, Dhubri, Assam. Charges have
been framed against the accused applicant on 05.02.2026. However, till date,
none of the witnesses named in the charge-sheet has been examined.
5. Mr. Dutta, learned counsel for the accused applicant, submits that, rather
than addressing the merits of the case at this stage, he would like to submit
before this Court that the mandatory provisions of Sections 36 and 48 of the
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BNSS, 2023 were not complied with during the arrest of the accused applicant.
This, he argues, renders the arrest itself illegal and on this ground alone, the
accused applicant should be granted bail. He further submits that the Hon'ble
Supreme Court, in a series of cases, including those from this High Court, has
held that in the event of any violation of the statutory mandates prescribed
under the BNSS, 2023 (i.e., Sections 36 and 48), the arrested person acquires
an unassailable right to be granted bail. In this connection, the learned counsel
has referred to the case of D. K. Basu vs. State of West Bengal, reported in
(1997) 1 SCC 416.
6. On the other hand, Mr. R. J. Baruah, learned Additional Public Prosecutor
for the State submits that the accused applicant is involved in a heinous crime
of rape of a minor girl and there are sufficient prime facie materials against the
accused applicant in the instant case. He further submits that, although the
notices under Sections 36 and 48 were not properly worded, such a deficiency
does not cause prejudice to the accused applicant in the present case.
Therefore, he opposes the prayer for bail made by the accused applicant.
7. Mr. S. Das, learned Amicus Curiae representing respondent No. 2, has
submitted that although he opposes the bail prayer of the accused applicant, in
view of the non-compliance with Sections 36 and 48 of the BNSS, 2024, this
Court may pass appropriate orders.
8. This Court has considered the submissions made by the learned counsel
appearing for the respective parties and has also perused the Trial Court Record
that has been placed before the Court.
9. In this connection, Section 36 of the BNSS being relevant are quoted
herein below:-
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"36. Procedure of arrest and duties of officer making arrest- Every
police officer while making an arrest shall-
(a) Bear and accurate, visible and clear identification of his name which will
facilitate easy identification;
(b) Prepare a Memorandum of Arrest which shall be-
(i) Attested by at least one witness, who is a member of the family of the
arrested person or a respectable member of the locality where the arrest
is made;
(ii) Counter signed by the person arrested; and
(c) Informed the person arrested, unless the Memorandum is attested by a
member of his family, that he has a right to have a relative or a friend or any
other person named by him to be informed of his arrest.
10. This Court has reviewed the notice under section 36 of the BNSS,
available in the Trial Court Record. The notices does not contain any grounds for
the arrest nor do they bear the signature of any relatives of the accused
applicant or any other representative from the locality at the time of the arrest.
As far as section 47 of the BNSS is concerned, although certain grounds are
stated, this Court finds the grounds insufficient. Regarding section 48 of the
BNSS, this Court observes that a WT message was sent to the Officer-in-Charge
of the Fakirganj Police Station, South Salmara, Assam, requesting the Officer-in-
Charge to inform the family members of the accused applicant. From the
contents of the notices, it is clear that the mandates of the aforementioned
sections i.e., Sections 36, 47, and 48 of the BNSS, 2023 were not complied with
while arrest was made.
11. Taking into account the ratio laid down by the Hon'ble Supreme Court in
the case of D. K. Basu (supra), as well as the judgments in Vihaan Kumar vs.
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State of Haryana & Another, reported in (2025) SCC Online SC 269, and
Prabir Purkayastha vs. State (NCT of Delhi), reported in (2024) 8 SCC 254,
this Court is of the considered opinion that the mandates of settled law were not
complied with while arresting the accused applicant. Therefore, this Court
deemed it appropriate to grant bail to the accused applicant.
12. In view of the aforesaid findings, the accused applicant namely, Sahidul
Islam @ Shohidul Islam, is directed to be released on bail forthwith on
furnishing a bail bond of Rs. 50,000/- (Rupees Fifty Thousand) with a surety of
like amount to the satisfaction of the learned Special Judge Bilasipara, Dhubri,
Assam, subject to the following conditions:
i. that the accused applicant shall appear before the Trial Court
as and when required;
ii. that the accused applicant shall not try to get in touch with
the victim girl or other family member of the victim, till the
completion of the trial proceedings.
13. In view of the above, the bail application stands allowed and disposed of.
14. Return the Trial Court Record.
JUDGE
Comparing Assistant
