Page No.# 1/5 GAHC010128212025 2025:GAU-AS:10633 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1941/2025 MD MUKSIDUR RAHMAN SON OF MR AMJAD ALI RESIDENT OF VILLAGE SAGUNBAHI WARD NO. 10, MOIRABARI, PO SAGUNBAHI, PS MOIRABARI DISTRICT MORIGAON, ASSAM PIN-782126 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:MOFIJA KHATUN (INFORMANT) WIFE OF JAHIRUL ISLAM RESIDENT OF VILLAGE- SAGUNBAHI WARD NO. 10 MOIRABARI PO SAGUNBAHI PS MOIRABARI DISTRICT- MORIGAON ASSAM PIN-78212 Advocate for the Petitioner : MS N BEGUM, MR. BISWAJIT TALUKDAR,MR S J CHOUDHURY Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, (AMICUS CURIAE, R2) BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER Page No.# 2/5 12.08.2025 1. Heard Mr. Z. Kamar, learned senior counsel assisted by Mr. B, Talukdar, learned counsel for the accused petitioner. Also heard Mr. R. J. Baruah, learned Addl. P.P., Assam appearing for the State respondent No.1 and Ms. M. K. Brown, learned Amicus Curiae appearing for the respondent No.2. 2. This petition under Section 483 of the BNSS, 2023 has been filed by the accused-petitioner, namely, Md. Muksidur Rahman, has prayed for grant of bail in connection with POCSO Case No.55/2024 under Sections 448/376 AB IPC R/W Section 6 of the POCSO Act. 3. The petitioner was arrested on 08.03.2024 in connection Moirabari PS Case No. 31/2024 and after investigation, charge-sheet was filed against him resulting in POCSO Case No. 55/2024. 4. Learned counsel for the petitioner has fairly submitted that earlier bail petition of the accused was rejected by a co-ordinate Bench of this Court on 04.03.2025. It is further submitted by the learned counsel for the petitioner that there is sufficient progress in the trial as ten witnesses out of eleven prosecution witnesses have already been examined including the minor victim. 5. The gist of allegation is about penetrative assault upon a minor girl who is aged about six years. 6. Scanned TCR has been received containing the relevant materials including depositions. 7. Mr. R. J. Baruah, learned Additional Public Prosecutor has submitted that the bail of the accused cannot be considered at this stage of trial. Page No.# 3/5 8. Ms. M. K. Brown, learned Amicus Curiae appearing for the respondent No.2 submits that she supports the submissions made by the learned Additional Public prosecutor and points out that apart from adverse materials, the trial is also at the final stage. 9. Since the earlier bail petition of the petitioner was rejected by this Court, the learned senior counsel submits that by way of new ground in this petition, they are taking recourse to the ground of non-furnishing of the grounds of arrest in the notice under Section 50 of Cr.P.C. Copy of the same is also a part of the bail petition. 10. In the case of Prabir Purkayastha Vs. State (NCT of Delhi) reported in 2024 SCC Online SC 934 and Vihaan Kumar vs. State of Haryana, reported in 2025 SCC Online SC 269 it has been held by the Hon’ble Supreme Court that noticing the accused properly about the grounds on which he has been arrested is a mandatory requirement in terms of the said statutory provision as well as Article 22(1) of the Constitution of India. It has also been explained that the grounds of arrest are not some general reasons given for the arrest of the accused but are points specific to the particular accused, explaining the grounds on which he has been arrested. 11. As per the governing law laid down by the Hon’ble Apex Court in these decisions, it is clear that non furnishing of proper grounds of arrest in the said notice under Section 50 Cr.P.C. or Section 47 of BNSS is violative of Article 22(1) of the Constitution and constitute a fatal procedural infirmity with regard to the arrest. It also follows from these decisions that once the arrest is found to be suffering from such fatal procedural infirmity and violation of constitutional provision, any subsequent and continuing custody of the accused would also become untenable. Page No.# 4/5 12. Now, coming back to the facts of the instant case, the notice under Section 50 Cr. P.C. given in this case is quoted herein below: “you are hereby informed that you are under arrest in connection with the above reference case. So, you are forwarded to the Hon’ble court. You may engage your advocate to submit bail petition before the Hon’ble Court for bail.” 13. In the situation, it is clear that the aforesaid nature of the notice under Section 50 Cr.P.C. do not satisfy the criteria in this regard which has been laid down by the Hon’ble Supreme Court in the aforesaid decisions. 14. Consequently, I come to the considered finding that the arrest of the present accused on 08.03.2024 in connection with this case has suffered from a fatal procedural infirmity violating constitutional provision. Consequently, it requires to be set aside and interfered with, despite the fact that the earlier bail petition was rejected on merits by a co-ordinate Bench of this Court. 15. Therefore, in the given facts and circumstances and in the backdrop of the aforesaid discussion, I accept the new grounds adduced by the petitioner side and in this subsequent bail petition. 16. Accordingly, the petitioners, named above, shall be released on bail on furnishing bail bond of Rs.1,00,000/- (Rupees One Lakh only) with two suitable sureties of the like amount to the satisfaction of learned Special Judge, Morigaon. The direction for bail is further subject to the conditions that the petitioners: (a) shall not abscond; (b) shall not in any manner cause any harm or harassment to the alleged victim and her family members. (c) shall not in any manner hamper or tamper with evidence. Page No.# 5/5 17. In case of violation of any of the bail condition, the learned prosecution or the informant side shall be at liberty to file an application for cancellation of the bail. 18. Accordingly, the bail application stands allowed and disposed of on the aforesaid terms. JUDGE Comparing Assistant