[Cites 5, Cited by 0]
Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 9 February, 2026
Page No.# 1/5
GAHC010021152026
2026:GAU-AS:1709
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./359/2026
LAL MIYA ALI AND 3 ORS.
SON OF NUR MD. ALI
R/O VILL- GAONBUHAPUM
P.S. HAJO
DIST. KAMRUP (R), ASSAM
2: DEWAN JUWAL
S/O DEWAN ABDUR RAHMAN
R/O VILL- RAJABARI
P.S. HAJO
DIST. KAMRUP (R)
ASSAM
3: SIRAJ ALI
S/OLT. HASAN ALI
R/O VILL- HIRAJANI
P.S. HAJO
DIST. KAMRUP (R)
ASSAM
4: SAMIM HUSSAIN
S/O JIYAUR RAHMAN
R/O VILL- BAMUNBARI
P.S. HAJO
DIST. KAMRUP (R)
ASSA
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MS. S K NARGIS, F RAHMAN,MS N SULTANA
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Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
Date : 09-02-2026
Heard Ms. S. K. Nargis, learned counsel appearing for the accused
applicants and Ms. N. Das, 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 applicants in connection with Pathsala P. S. Case No.
03/2026 under Sections 3(5)/305(a) of the BNS read with Section 13(1) of the
Assam Cattle Preservation Act, 2021 and Section 11(1)(a) of the Preservation of
Cruelty to Animals Act, 1960.
3. The brief facts of the case are as follows: On 04.01.2026, the complainant,
Shri Pranjit Talukdar of Doligaon under Pathsala Police Station, lodged an FIR
alleging that a red and white colour cow, belonging to him, had been missing
since 28.12.2025 and could not be traced despite the search. However, on
01.01.2026, the complainant watched a video broadcast on a local television
channel, in which it was seen that some unknown miscreants had forcibly lifted
a red and white cow and loaded it into a white colour luxury vehicle. Upon
seeing the video, the complainant identified the cow as his missing cow, and
therefore, he suspected that some unknown miscreants had stolen his cow. By
filing the FIR, he prayed for legal action against the unknown miscreants and for
the recovery of the cow. On receipt of the FIR, the Police registered Pathsala
P.S. Case No. 03/2025 under the aforementioned sections.
4. The accused applicant No. 1 was arrested on 05.01.2026 and the accused
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applicant Nos. 2, 3 and 4 were arrested on 07.01.2026 in connection with the
aforementioned case and since then, they were languishing in the jail.
5. Ms. S. K. Nargis, learned counsel for the accused applicants, submits that
the accused applicants are in no way linked to the alleged theft of the cow.
Learned counsel submits that the accused applicant are not named in the FIR,
in fact, they have been arrested merely on suspicion without any independent,
direct or corroborative evidence linking them to the commission of the alleged
cattle theft. Learned counsel submits that the primary allegation against the
accused applicants pertains to Section 305(a) of the BNS, relating to theft from
a means of transport, which is an offense punishable with imprisonment
extending up to 7 (seven) years. She submits that custodial arrest for offenses
punishable with up to 7 (seven) years is an exception and not the rule and the
investigating agency is duty-bound to justify the necessity of arrest. She submits
that the arrest of the accused under Section 35 of the BNSS is a mandatory
procedure, and the safeguards prescribed therein were not followed in this case.
She submits that, in the instant case, no notice under Section 35(3) of the BNSS
was issued to the accused applicants; therefore, the arrest is in violation of the
mandatory provisions of the BNSS as laid down under Section 35 of the BNSS.
6. In support of her arguments, Ms. Nargis, learned counsel, has relied upon
the case of Arnesh Kumar Vs. State of Bihar reported in 2014 Supreme (SC)
489.
7. On the other hand, Ms. N. Das, learned Additional Public Prosecutor for the
State, by producing the Case Diary before this Court, has submitted that there
are statements from various witnesses. The accused applicants themselves also
confessed that they have been involved in various cattle thefts over the last
several years and they revealed one co-accused during interrogation. She
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submits that in view of such incriminating materials against the accused
applicants, the bail application should be rejected.
8. This Court has considered the submissions made by the learned counsel
for the respective parties and carefully perused the Case Diary submitted before
this Court.
9. It is seen that the accused applicants were arrested on the basis of
suspicion in the instant case. Although they were not named in the FIR filed by
the complainant, it is noted that the accused applicant No. 1 was arrested on
05.01.2026 and the accused applicant Nos. 2, 3 and 4 were arrested on
07.01.2026 and has been in custody since then. This Court has considered the
submission of the learned counsel for the accused applicants that the ratio laid
down in Arnesh Kumar (supra) applies in this case. In Arnesh Kumar (supra), the
Hon'ble Supreme Court held that Section 41A of the Cr.PC (Section 35 of the
BNSS) provides that in cases where the arrest of a person is not required under
Section 41(1) of the Cr.PC, the police officer is required to issue a notice
directing the accused to appear before him at a specific place and time. Law
obliges such an accused to appear before the police officer, and it further
mandates that if such an accused complies with the terms of the notice, he shall
not be arrested unless, for reasons to be recorded, the police officer is of the
opinion that arrest is necessary. The Hon'ble Supreme Court has also held that
the ratio laid down in the Arnesh Kumar (supra) case is to be followed in all
cases where offenses are punishable with imprisonment for a term that may be
less than or extend to 7 (seven) years, whether with or without fine. Therefore,
in the instant case, since Section 305(a) provides for punishment of up to 7
(seven) years, the rigours of Section 35 of the BNSS will applicable and from the
materials, it is evident that no such compliance has been made by the
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investigating authority.
10. In view of the aforesaid ratio laid down by the Hon'ble Supreme Court and
after considering the matter in it's entirety, this Court is of the opinion that the
accused applicants should be granted bail, at this stage. Therefore, it is directed
that the accused applicants shall be released on bail upon furnishing a bail bond
of Rs. 30,000/- (Rupees Thirty Thousand) each with surety of like amount to the
satisfaction of the learned Chief Judicial Magistrate, Bajali, Assam, subject to the
following conditions:
i. that the accused applicant shall cooperate with the
investigation;
ii. that the accused applicant shall appear before the
investigating authority as and when required;
iii. that the accused applicant 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 disposing such
facts before the investigating authority against the
accused applicant;
11. In view of the aforesaid directions, the instant bail application is,
accordingly, disposed of as allowed.
12. Return the Case Diary.
JUDGE
Comparing Assistant
