Page No.# 1/8 GAHC010069352025 2025:GAU-AS:5280 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1044/2025 MD SAIFUL ISLAM S/O- MD. KHURACHED ALI @HUSSAIN ALI @ KHURSED VILL-BALIPUKHURI P.O. BURIGANG, PIN-784176, P.S. GINGIA, DIST.BISWANATH, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PP, ASSAM 2:YASMINA KHATUN W/OMD. SOFIKUL ISLAM VILL-BALIPUKHURI P.O. BURIGANG P.S.GINGIA DIST. BISWANATH ASSAM PIN- 784176 Advocate for the Petitioner : MR. P BORDOLOI, MR. R K MAHANTA Advocate for the Respondent : PP, ASSAM, Page No.# 2/8 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 30.04.2025 Heard Mr. P. Bordoloi, learned counsel for the petitioner. Also heard Mr. D. P. Goswami, learned Additional Public Prosecutor for the State respondent. 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special (POCSO) Case No. 100/2024, registered under Section 65(2) of BNS, read with Section 4 of the POCSO Act, which is pending before Court of learned Special Judge, Biswanath Chariali. 3. Scanned copy of the Trial Court Record as called for, has already been received and I have perused the same. 4. It is submitted by the learned counsel for the petitioner, Mr. Bordoloi that the present petitioner is innocent and he is not at all involved in the alleged offence. However, he was arrested in connection with this case on 14.11.2024 and since then, he is in custody. The case has been charge sheeted on 31.01.2025. He further submitted that at the time of the petitioner’s arrest, the grounds of arrest were not mentioned in the Arrest Memo, or the Notice issued to the petitioner under Section 47 of BNSS. Furthermore, they were not communicated to his family members or relatives, as mandated under Section 48 of BNSS. He contended that such non- compliance constitutes a violation of Articles 21 and 22(1) of the Constitution of India, as the disclosure of arrest grounds is a mandatory legal requirement. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the accused, should be informed to him at the time of his arrest and otherwise it would be against the mandate of the Constitution of India as well as the Page No.# 3/8 statutory provisions which would vitiate the arrest itself. 5. In this context, Mr. Bordoloi, learned Counsel for the petitioner, also cited the following decisions: (i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269. (ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254. 6. On the other hand, Mr. Goswami, learned Additional Public Prosecutor, has submitted that service is still awaited on respondent No. 2, and that the order on the bail prayer may be passed in the presence of respondent No. 2. He further submitted that the case has already been charge-sheeted, and the charge has been framed against the accused/petitioner. Thus, considering the nature of the allegation and the statement made by the victim, he submits that this is not a fit case for granting bail at this stage and accordingly raises an objection. He also submitted that although there may not be any written communication regarding the grounds of arrest, it is evident from the materials available in the Case Record that the accused was informed of the grounds of arrest orally during the investigation. Hence, he opposes the prayer for bail to the accused/petitioner. 7. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the annexures filed along with the petition, more particularly, the Notice issued to the present accused/petitioner under Section 47 and 48 of Cr.P.C. It is accordingly seen that while issuing the Notice, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he is arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the Notice/Arrest Memo/Inspection Memo. Thus, it is the admitted position that the grounds of arrest were not intimated to the Page No.# 4/8 accused/petitioner or to his family members at the time of his arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which she was taken into custody of police. 8. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 47 of BNSS, rendering the arrest and subsequent remand of the accused/petitioner invalid. The accused/petitioner has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest have to be furnished to the arrested person as a matter of course and without any explanation. Non-supply of written grounds of arrest to the arrested accused/petitioner would vitiate the arrest even if the case has been charge- sheeted. 9. The Hon’ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioner, has held in paragraph Nos. 19, 21 & 48 of the judgment as under: “19. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India. Page No.# 5/8 21. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality 3 (2000) 8 SCC 590committed at the time of arresting the accused and the grant of initial police custody remand to the accused. 48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase ‘reasons for arrest’ and ‘grounds of arrest’. The ‘reasons for arrest’ as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the ‘grounds of arrest’ would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the ‘grounds of arrest’ would invariably be personal to the accused and cannot be equated with the ‘reasons of arrest’ which are general in nature.” 10. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court has held has under: “14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article Page No.# 6/8 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second.” 11. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/petitioner under Section 47 of BNSS and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 47 of BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India. 12. More so, the Hon’ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution Page No.# 7/8 of India. The Hon’ble Supreme Court in paragraph No. 16 of the said judgment has held as under: “16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22.” 13. In view of the entire discussions made above, it is the opinion of this Court that the grounds of arrest were not communicated to the petitioner or mentioned in the Notice issued to the present accused/petitioner under Section 47 and 48 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioner. 14. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the of learned Special Judge, Biswanath Chariali, the accused/petitioner, namely, Md. Saiful Islam, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Special Judge, Biswanath Chariali, on each and every date to be fixed by the Page No.# 8/8 Court; (ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) that the petitioner shall submit her Aadhar Card and PAN Card before the of learned Special Judge, Biswanath Chariali; and (iv) that the petitioner shall not leave the jurisdiction of the of learned Special Judge, Biswanath Chariali, without prior permission. 15. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant