Page No.# 1/5 GAHC010105102025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1637/2025 SHRI DINESH CHABAR ALIAS DINESH SOBOR ALIAS DINESH SABAR SON OF LAKHIYA SOBOR, VILLAGE GINGIA TEA ESTATE, PO GINGIA TEA ESTATE , P.S. GINGIA, DIST. BISWANATH, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PP, ASSAM 2:SHRI BIJAY NAYAK SON OF KHUNDU NAYAK VILLAGE- GINGIA TEA ESTATE P.O. GINGIA TEA ESTATE PIN-784184 P.S. GINJIA DIST. BISWANATH ASSA Advocate for the Petitioner : MR. P BORDOLOI, MR. R K MAHANTA Advocate for the Respondent : PP, ASSAM, MR SARFRAZ NAWAZ (AMICUS CURIAE, R2) BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 18.07.2025 Page No.# 2/5 Heard Mr. P. Bordoloi, learned counsel for the petitioner. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor as well as Mr. S. Nawaz, learned Amicus Curiae, appearing for the respondent No. 2. 2. This application under Section 483 of BNSS 2023, has been filed by the petitioner Sri. Dinesh Chabar @ Dinesh Sobor @ Dinesh Sabar, who has been detained behind the bars since 10.11.2024(for last 250 days) in connection with special POCSO Case No. 109/2024, under Sections 417/376/313 of the Indian Penal Code read with Section 6 of the POCSO Act,2012. 3. The gist of accusation in this case is that on 10.11.2024, the father of the victim girl has lodged an FIR before the Officer-In-Charge of Gingia Police Station, inter-alia, alleging that the petitioner had physical relationship with his daughter as a result of which she conceived and gave birth to a baby boy on 03.11.2024. 4. Learned counsel for the petitioner has submitted that in this case the trial is going on and the victim girl and the informant has already been examined by the Trial Court as PW1 and PW2. 5. Learned counsel for the petitioner has further submitted that he is praying for bail in this case mainly on the ground that at the time of his arrest though the petitioner was served with notice under Section 47 of the BNSS, however, the same does not contain any grounds of arrest and as such the fundamental rights of the petitioner under Article 22(1) of the Constitution of India has been violated in this case. He has cited the case of “Vihaan Kumar v. State of Haryana”, reported in “2025 SCC OnLine SC 269” , in support of his submission. 6. Learned Additional Public Prosecutor, on the other hand, submits that there are sufficient incriminating materials against the petitioner having been involved in the offence alleged in the Charge-Sheet. He, however, fairly submits that the Page No.# 3/5 notice issued under Section 47 and 48 of BNSS in this case does not contain the basic facts, which necessitated the arrest of the petitioner in this case. Same is the submission made by the learned Amicus Curiae. 7. I have considered the submissions made by learned counsels for both the sides and have gone through the scanned copy of the case records of Special POCSO Case No. 109/2024. 8. In this case, the victim girl and the first informant have already been examined. It also appears from the perusal of the notice under Section 47 of the BNSS, which was served on the petitioner that same does not contain any grounds of arrest neither any basic facts which necessitated his arrest on 10.11.2024 in Gingia P. S. Case No. 88/2024 has been stated therein. The Apex Court in the case of Vihaan Kumar V. State of Haryana and Another(supra) has observed as follows: 26. Therefore, we conclude: 26.1. The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1); 26.2. The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved; 26.3. When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the investigating officer/agency to prove compliance with the requirements of Article 22(1); 26.4. Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the Page No.# 4/5 investigation, charge-sheet and trial. But, at the same time, filing of charge- sheet will not validate a breach of constitutional mandate under Article 22(1); 26.5. When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and 26.6. When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established. 9. From the facts discussed hereinabove, it is clear that in the instant case there has been a violation of the fundamental rights of the petitioners guaranteed under Article 22(1) of the Constitution of India and as such on that count itself, he is entitled to get bail. 10. This Court accordingly allowed the petitioner to go on bail of Rs. 30,000/- (Rupees Thirty Thousand) with one surety of like amount subject to the satisfaction of the trail court with following conditions : (i). That the petitioner 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 disclosing such facts of the case before the Investigating Officer; (ii). That the petitioner shall co-operate in the investigation trial; 11. This bail application is accordingly disposed of. Page No.# 5/5 JUDGE Comparing Assistant