Page No.# 1/8 GAHC010082532025 2025:GAU-AS:7683 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1234/2025 ABID JOYNALUDDIN S/O JALIL ALI R/O KALMOUBARI, P.S. MIKIRBHETA, DIST. MORIGAON, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR B P BORAH, MR. A KHANDAKAR,MR P J DUTTA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 11.06.2025 Heard Mr. B. P. Borah, learned counsel for the petitioner. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor for the State respondent. Page No.# 2/8 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 Sessions Case No. 254/2024, registered under Section 376(2) (n) of IPC, which is pending before the Court of learned Additional District & Session Judge No.2, Kamrup (M). 3. The scanned copy of the case record as called for, has already been received and I have perused the same. 4. It is submitted by Mr. Borah, learned counsel for the petitioner, that the accused/petitioner is innocent and has been falsely implicated in the present case. The petitioner has been in custody for more than 295 days, and hence, considering the length of his detention, his prayer for bail may be considered. He further submitted that the petitioner’s earlier bail application was rejected by this Court upon perusal of the case diary and consideration of the statement recorded under Section 164 of the Cr.P.C., taking into account the probability of hampering or tampering with the evidence of the material witnesses. The order of rejection was passed by this Court on 21.01.2025. However, even after the lapse of more than four months, the prosecution has failed to examine the witnesses, and the material witnesses, i.e., the informant and the victim, have not turned up to adduce their evidence. The next date is fixed for production of the accused on 23.06.2025. Thus, considering this aspect of the case, the prayer of the petitioner may be considered, and further he is ready to produce sufficient surety to the satisfaction of the Court if he is granted the privilege of bail. 5. Mr. Borah, learned counsel for the petitioner, further raised the issue of non-furnishing of the grounds of arrest while issuing notices under Sections Page No.# 3/8 47/48 of the BNSS, which is a mandatory requirement. The non-compliance of this requirement constitutes a violation of Articles 21 and 22(1) of the Constitution of India. 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 statutory provisions which would vitiate the arrest itself. 6. In support of his submissions, Mr. Borah, learned counsel for the petitioner, has 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. 7. Mr. Goswami, the learned Additional Public Prosecutor, has submitted that there is no change in circumstances since the rejection of the earlier bail application of the accused/petitioner. He further submitted that, the case has already been charge sheeted Vide C. S. No.84/2024, dated 29.09.2024 and after framing of charge against the accused/petitioner; the case has been fixed for hearing and is presently posted for 23.06.2025 for production of the accused. He also submitted that the possibility of hampering the evidence of the witnesses cannot be ruled out at this stage. He further submitted that, from the statement made by the victim under Section 164 of the Cr.P.C., it appears that the victim was raped by the present accused/petitioner under threat. Hence, there is a strong likelihood of further threats being made to the witnesses if the accused/petitioner is released on bail. Moreover, based on the materials Page No.# 4/8 available in the case record, it cannot be concluded that the petitioner is innocent, that he has not committed the alleged offence, or that there is no probability of his committing a similar offence if released on bail. Thus, he raised a strong objection and submitted that, considering the nature and gravity of the offence, this is not at all a fit case for granting bail to the accused/petitioner at this stage. 8. 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 Sections 47/48 of the BNSS. It is an admitted fact that the petitioner’s earlier bail application was rejected by this Court upon perusal of the case diary, particularly considering the statement of the victim recorded under Section 164 of the Cr.P.C. It is also an admitted fact that there is no change in circumstances since the rejection of the earlier bail application. However, the petitioner has now approached the Court raising a new issue regarding the non-furnishing of the grounds of arrest to the accused/petitioner at the time of issuing notices under Sections 47/48 of the BNSS. It is accordingly seen that while issuing the said Notices, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notice. Thus, it is the admitted position that the grounds of arrest was not intimated to the 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 he was taken into custody of police. Page No.# 5/8 9. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section Sections 47/48 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. 10. 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 No. 19 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. Page No.# 6/8 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.” 11. 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.” Page No.# 7/8 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 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.” 14. At the same time, it also cannot be denied that the accused/petitioner has been in custody since 20.08.2024, and till date, the prosecution has not examined any of the witnesses. Therefore, it cannot be overlooked that the prosecution may take a considerable period to complete the trial. 15. In view of the entire facts and circumstances discussed above, particularly the non-mentioning of the grounds of arrest in the notices issued to the present accused/petitioner under Sections 47/48 of the BNSS, the length of detention already undergone by the accused/petitioner, and the view expressed by the Hon’ble Supreme Court in the case laws referred to hereinabove, this Court finds it to be a fit case for granting the privilege of bail to the accused/petitioner. 16. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) surety of like amount, provided that Page No.# 8/8 one surety has to be a government servant, to the satisfaction of the learned Additional District & Session Judge No.2, Kamrup (M), the accused/petitioner, namely, Abid Joynaluddin, be enlarged on bail, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Additional District & Session Judge No.2, Kamrup (M), 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 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 Aadhaar Card and PAN Card before the learned Additional District & Session Judge No.2, Kamrup (M); and (iv) that the petitioner shall not leave the jurisdiction of the learned Additional District & Session Judge No.2, Kamrup (M), without prior permission. 17. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant