Page No.# 1/4 GAHC010163072025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2405/2025 JAHANUDDIN SK S/O- MD. KADER SK @ KADER ALI, R/O- VILLAGE- BARJAN PART- I, P.S.-TAMARHAT, DIST.-DHUBRI, ASSAM, PIN - 783332. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP ASSAM 2:ABDUL HOQUE S/O- LATE PNSERA ALI VILLAGE- KHOSUA P.S.-TAMARHAT DHUBRI ASSAM PIN -783332 Advocate for the Petitioner : MR H R A CHOUDHURY, B HAZARIKA,T TALUKDAR,MR. R ISLAM Advocate for the Respondent : PP, ASSAM, MS. S CHAKRABORTY, LEGAL AID COUNSEL FOR R-2 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 26.08.2025 1. Heard Mr. R. Islam, learned counsel for the petitioner. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor for the State as well as Ms. S. Chakraborty, learned legal-aid-counsel appearing for the respondent No. 2. Page No.# 2/4 2. This application under Section 483 of BNSS has been field by the petitioner, namely, Jahanuddin Sk. who has been detained behind the bars since 02.01.2025 in connection with Special Case No. 38/2025 under Section 6 of the POCSO Act, 2012 read with Section 140(3)/127(2)/65(1)/64(2)(m) of BNS pending before the Court of learned Special Judge, POCSO, Dhubri. 3. The gist of accusation in this case is that on 01.01.2024, the father of the victim girl had lodged an FIR that on the night of 31.12.2024 when the informant woke up, he could not see his daughter in his house. It is further stated in the FIR that later on, the brother of the petitioner recovered her at Hatidhura Bridge and from there she was brought back. On inquiry, she informed that she went outside the house to attend the nature call and the petitioner grabbed her and took her to a nearby paddy field and raped her. 4. The learned counsel for the petitioner has submitted that there was a love affair between the petitioner and the victim girl. He also submits that in this case though notice under Section 47 of the BNSS was served on him, however, no grounds of arrest is mentioned therein. He submits that there has been violation of the fundamental rights of the petitioner guaranteed to him under Article 22(1) of the Constitution of India and on that count alone, he may be allowed to go on bail. In support of his submission, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “Vihaan Kumar Vs. State of Haryana” reported in “(2025) 5 SCC 799”. 5. He further submits that, in the meanwhile, the petitioner, the informant and one independent witness has already been examined by the Trial Court. He also submits that the petitioner is ready to co-operate in the trial and, therefore, he may be allowed to go on bail. 6. On the other hand, Mr. K. K. Parasar, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the petitioner on the ground that the Page No.# 3/4 victim girl in her statement recorded under Section 183 of BNSS as well as while deposing as PW-1 before the Trial Court has also implicated the petitioner. He, however, fairly submits that the notice under Section 47, the ground of arrest were not mentioned though the thumb impression of the petitioner appears there. 7. Ms. S. Chakraborty, the learned legal-aid-counsel appearing for the respondent No. 2 has also opposed the grant of bail to the petitioner as the trial is going on and there are some more independent witnesses to be examined. 8. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record including the scanned copy of the case record of Special Case No. 38/2025. 9. The petitioner in this case is a young boy of 21 years of age. It also appears that the victim girl and the informant have already been examined as prosecution witnesses, however, these facts do not entitle him to get bail. 10. What makes the petitioner entitle to get bail is that in this case, the constitutional mandate of Article 22(1) of the Constitution of India as well as statutory requirement of Section 47 of BNSS have not been followed by the arresting authority. 11. On perusal of the notice under Section 47 which was served on the petitioner, it appears that it only give intimation to the petitioner regarding the fact of his arrest in connection with Tamarhat P.S. Case No. 02/2025, no other basic facts which necessitated his arrest has been mentioned therein. 12. The Apex Court in the case of “Vihaan Kumar Vs. State of Haryana” (supra), has observed that at the time of arrest of an arrestee, the arresting authority is required to communicate the grounds of arrest and non-compliance of this requirement would vitiate this arrest of such an arrestee itself on that ground such an arrestee is entitled to get bail. 13. In this case also, as there has been violation of the fundamental rights of the Page No.# 4/4 petitioner guaranteed under Article 22(1) of the Constitution of India in not furnishing the grounds of arrest in writing to him as soon as he was arrested, he is entitled to get bail in this case. 14. In view of the above discussions made in the foregoing paragraph, the above named petitioner is allowed to go on bail of Rs.50,000/- (Rupees Fifty Thousand) with one surety of like amount subject to the satisfaction of the learned Special Judge, POCSO, Dhubri with following conditions:- i. That the petitioner shall not directly or indirectly make any inducement, threat or promise to the victim girl or to the witnesses or any other 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 Trial Court; ii. That the petitioner shall co-operate in the trial; 15. This bail application is accordingly disposed of. JUDGE Comparing Assistant