Mir Rafiqul Hussain vs The State Of Assam And Anr on 4 May, 2026

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GAHC010036722026




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

                                   Case No. : AB/461/2026

            MIR RAFIQUL HUSSAIN
            S/O MIR MUSHARAF HUSSAIN
            R/O- PRANESWAR SARMA ROAD,BEHIND SBI, RANGIA BRANCH, P.O.P.S.-
            RANGIA, DISTRICT-KAMRUP, ASSAM.



            VERSUS

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

            2:RAHANA AKHTARA
            W/O RAJU CHOUDHURY
            C/O ASHIF IQBAL
            R/O PRANESWAR SARMA ROAD (BEHIND SBI RANGIA BRANCH)
             P.O.AND P.S. RANGIA
             DIST. KAMRUP
            ASSA

Advocate for the Petitioner   : J S AHMED,

Advocate for the Respondent : PP, ASSAM, MR A B DEY,MR. I CHOUDHURY(R2)




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                             ORDER

Date : 04.05.2026

1. Heard Mr. J. S. Ahmed, the learned counsel for the petitioner. Also Page No.# 2/6

heard Mr. K. K. Das, the learned Additional Public Prosecutor for the State respondent. Also heard Mr. A. B. Dey, the learned Amicus Curiae for the respondent No.2.

2. This application under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has been filed by the petitioner, namely, Mir Rafiqul Hussain, who is apprehending his arrest in connection with Rangia P.S. Case No. 194/2025, under Section 75 of the BNS, 2023 read with Sections 8/12 of the POCSO Act, 2012 and added Sections 249/351 of the BNS, 2023.

3. This is for the third time, the petitioner has approached this court seeking anticipatory bail. On previous occasions his prayer for grant of anticipatory bail were rejected by this Court.

4. The gist of accusation in this case is that the mother of the victim girl, on 21.08.2025, had lodged an FIR before the Officer-in-Charge of Rangia Police Station, inter-alia, alleging that on 5:30 PM on 20.08.2025, when the minor daughter of the informant went to the pharmacy situated in front of the State Bank of India, Rangia, to bring some medicine, she met the petitioner inside the pharmacy and the petitioner called her near him and started touching various parts of her body, including the private parts, as a result of which the daughter of the petitioner, came out from the pharmacy weeping and narrated the incident to the informant.

5. The learned counsel for the petitioner submits that the offence involved in this case entails punishment not more than 7 (seven) years, however, no notice under Section 35(3) of the BNSS, 2023 has been issued to the petitioner neither any reasons has been shown for not issuing such notice.

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6. The learned counsel for the petitioner submits that it is the mandate of law that whenever in a case which involves offence which entails punishment not more than 7(seven) years, in the notice under Section 35(3) of the BNSS, 2023 should be issued at the instant case or else reasons has to be shown for not issuing such notice. However, nothing has been done in this case.

7. The learned counsel for the petitioner further submits that in the meanwhile, the victim girl and the witnesses have been examined and the petitioner is ready to co-operate in the investigation. Hence, his custodial detention may not be necessary.

8. The learned counsel for the petitioner further submits that under similar circumstances, the High Court of Madhya Pradesh in the case of "Praveen Jain @ Praveen Kumar Jain Vs. State of M.P." (M.Cr.C. Case No.

17690/2020) granted anticipatory bail to the petitioner who was facing similar accusations on the ground that no notice under Section 41A was issued to the said petitioner.

9. On the other hand, the learned Additional Public Prosecutor appearing for the State has produced the case diary of Rangia P.S. Case No. 194/2025 and has opposed the grant of anticipatory bail to the present petitioner on the ground that no case has been made out by the petitioner for grant of anticipatory bail. He also submits that the plea raised by the petitioner in the instant bail applications were considered by this Court in its earlier order by which anticipatory bail applications were rejected on earlier occasions.

10. He submits that the anticipatory bail application under the facts and circumstances of the present case is not maintainable. He further Page No.# 4/6

submits that since the offence involved in this case is punishable with imprisonment for less than 7 years, the Investigating Officer has made attempts to serve notice under Section 35 (3) of BNSS, 2023 upon the petitioner. But when the police went to serve the said notice, the petitioner was not found in his residence, neither any of his family members were found, on whom the notice could have been served.

11. On the other hand, Mr. A. B. Dey, the learned Amicus Curiae for the respondent No.2 has also opposed the grant of anticipatory bail to the petitioner and has submitted that no case has been made out by the petitioner for grant of anticipatory bail. He submits that from the submission of the learned Additional Public Prosecutor, it becomes clear that the Investigating Officer had attempted to serve notice on the petitioner. However, only due to non-availability of the petitioner at his home, the notice could not be served.

12. He submits that in the case of "Satender Kumar Antil Vs. Central Bureau of Investigation", reported in 2025 7 SCR 1858, the Apex Court has

observed that the service of notice under Section 35 of the BNSS, 2023, needs to be carried out in a manner that protects the substantial rights of the accused, as non-compliance with the notice can have a drastic effect on the liberty of the individual. He also submits that had the petitioner been arrested without serving notice under Section 35 of the BNSS, 2023, the case would have been different and the petitioner could have prayed for bail on that count itself. However, same is not the case while seeking anticipatory bail.

13. He also submits that though in the said case, the Apex Court has also dealt with the issue as to whether the notice under Section 35 (3) of Page No.# 5/6

the BNSS, 2023 can be served through electronic mode and has answered in negative. However, he submits that recourse to Section 67 of the BNSS, 2023 may, perhaps, be taken by the Investigating Officer in an event when the person for whom the notice is sought to be served could not be found.

14. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record.

15. It appears that the ruling cited by the learned counsel for the petitioner in support of his submission, i.e., Praveen Jain @ Praveen Kumar Jain Vs. State of M.P (Supra), shows that the petitioner in that case was

not granted any anticipatory bail, the only protection was given to the petitioner in that case was that he should be first summoned to co- operate in the investigation and if the petitioner cooperates in the investigation, then the occasion of his arrest should not arise.

16. On perusal of order dated 18.11.2025, passed in Anticipatory Bail Application No.2521/2025, it appears that the said application was disposed of by this Court on the similar reasoning as held by the High Court of Madhya Pradesh in the case of Praveen Jain @ Praveen Kumar Jain Vs. State of M.P (Supra).

17. Since the petitioner is yet to be arrested in the aforesaid case and due to his non-availability, the notice under Section 35 (3) of the BNSS, 2023 also could not be served on him, hence, the violation of notice under Section 35 (3) of the BNSS, 2023, at this stage, does not arise.

18. No new ground has been shown by the petitioner in this anticipatory bail application, justifying reconsideration of his prayer for grant of anticipatory bail.

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19. The Investigating Officer shall, however, make all endeavour to serve the notice under Section 35(3) of the BNSS, 2023 on the petitioner, if required, by taking recourse to provision under Section 67 of the BNSS, 2023.

20. Under such circumstances, this Court does not find any merit in the instant anticipatory bail application and the same is dismissed.

JUDGE

Comparing Assistant