Page No.# 1/7 GAHC010071742025 2025:GAU-AS:5180 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1055/2025 MD AHMED ALI S/O LATE KUTUB ALI R/O- VILL- LAWGAON, PS- NAGAON, DIST- NAGAON, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP BY THE LEARNED PP, ASSAM 2:JALAL UDDIN R/O VILL-LAWGAON P.S.NAGAON SADAR DIST. NAGAON ASSA Advocate for the Petitioner : MR SARFRAZ NAWAZ, SAMIM RAHMAN,MS SURAYA RAHMAN,MR A W AMAN,MR. SURAJIT DAS Advocate for the Respondent : PP, ASSAM, MR. A PHUKAN, AMICUS CURIAE, R-2 Page No.# 2/7 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 29.04.2025 Heard Mr. S. Nawaz, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. A. Phukan, learned Amicus Curiae for the respondent No. 2. 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 Nagaon P.S. Case No. 88/2025, under Sections 65(1)/351(2)/351(3) of BNS, 2023 read with Section 6 of POCSO Act, 2012. 3. Case Diary has been received and I have perused the same. 4. It is submitted by Mr. Nawaz, learned counsel for the petitioner, that the present accused/petitioner is innocent and he has not committed any offence as alleged in the F.I.R. It is a fact that there was a land dispute between the informant and the accused and the present F.I.R. is lodged only out of the grudge due to the said land dispute. He further submitted that the F.I.R. was lodged after 1 (one) month of the said occurrence. Further he submitted that the accused/petitioner is in custody for last 80 days and hence, considering the length of detention also, his prayer may be considered. He further raised the issue of non-furnishing of the grounds of arrest in the Arrest Memo as well as in the Notice under Section 47 of BNSS, which is mandatorily required and non- Page No.# 3/7 compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. In this context also, Mr. Nawaz, learned counsel for the petitioner, also relied on the following decisions of the Hon’ble Supreme Court: (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. 5. Mr. Lahkar, learned Additional Public Prosecutor, submitted in this regard that there are sufficient incrimination in the statement made by the victim under Section 183 BNSS as well as in the statement recorded under Section 161 Cr.P.C. He further submitted that the victim was only 13 years of age at the time of incident and she fully implicated the present accused/petitioner. Thus, he submitted that considering this aspect of the case, the petitioner may not be released on bail at this stage. 6. Mr. Phukan, learned Amicus Curiae for the respondent No. 2, submitted in this regard that admittedly the girl was a minor at the relevant time of incident and she was also threatened by the accused and his wife which also reveals from the F.I.R. Accordingly, he submitted that the probability of hampering or tampering with the evidence of the witnesses also cannot be denied at this stage. Thus, he also raised objection and submitted that it is not a fit case to allow the accused/petitioner to go on bail at this stage. Page No.# 4/7 7. After hearing the submissions made by the learned counsels for both sides and also considering the materials available in the Case Diary, it is seen that there is no probability of filing the charge-sheet within the statutory period, though the accused/petitioner is behind the bar for last 80 days. More so, it is an admitted fact that the grounds of arrest were not communicated to the present accused/petitioner in the Arrest Memo as well as in the Notice under Section 47 of BNSS. 8. 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. 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 Page No.# 5/7 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.” 9. 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 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.” 10. In the instant case also, as discussed above, it is seen that there is no Page No.# 6/7 mention of grounds of arrest in the Arrest Memo, as well as 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 and in such cases, this Court is of the considered opinion that for the violation of the constitution mandate contained under Article 22(1) of the Constitution of India, the arrest of the petitioner is vitiated and it may be a sufficient ground to consider his bail application. 11. In view of the discussions made above, without going by the detail of the merit of the case, this Court is of the opinion that it is a fit case to extend the privilege of bail to the accused/petitioner. 12. 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 learned Special Judge, Nagaon, the accused/petitioner, namely, Md. Ahmed Ali, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Special Judge, Nagaon, on each and every date to be fixed by the Court; (ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the Page No.# 7/7 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 his Aadhar Card and PAN Card before the learned Special Judge, Nagaon; and (iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Nagaon, without prior permission. 13. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant