Page No.# 1/10 GAHC010251482024 2025:GAU-AS:3614 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3665/2024 MD AHMED ALI S/O LT. ALI HUSSAIN R/O VILL- BARSAL, PALAHGURI P.S. JAGIROAD, DIST. MORIGAON, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP BY THE PP, ASSAM 2:SRI SANTANU PATAR S/O LATE LOKO PATAR R/O GUVA JAGIROAD P.S. JAGIROAD DIST. MORIGAON ASSA Advocate for the Petitioner : MS. S K NARGIS, MS N SULTANA,MS S BEGUM Advocate for the Respondent : PP, ASSAM, MR. I HAQUE (R2) Page No.# 2/10 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 27.03.2025 Heard Mr. H R A Choudhury, learned Senior Counsel assisted by Ms. S. K. Nargis, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. I. Haque, learned counsel appearing on behalf of the respondent No. 2/informant. 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 POCSO Case No. 144/2024, arising out of Jagiroad P.S. Case No. 151/2024, under Sections 87/64(2)(m) of BNS read with Section 6 of the POCSO Act, 2012, pending before the Court of Special Judge (POCSO), Morigaon, Assam. 3. Scanned copy of the Trial Court Record has already been received. Perused the same. Heard both sides. 4. It is submitted by Mr. Choudhury, learned Senior Counsel for the petitioner, Page No.# 3/10 that on earlier occasion, this Court, while dealing with this bail application, vide order dated 13.03.2025, had observed that the prayer for bail of the petitioner may be considered after completion of recording of evidence of the victim girl. But, presently, 3 (three) witnesses, i.e. the victim, informant and one eye witness, are already been examined by the prosecution. Further he submitted that from the evidences of the prosecution witnesses also, it is seen that there are some contradictions found in their evidences. That apart, there is no medical evidence to support the case of the prosecution. He further submitted that as the vital witnesses of the prosecution are already been examined, the question of hampering or tempering with the witnesses does not arise at this stage. However, the petitioner will regularly appear before the Court and will contest the case if he is granted with the privilege of bail. 5. Mr. Choudhury, learned Senior Counsel, further submitted that subsequent to filing of the present bail application, it has come to the knowledge of the petitioner that no grounds of arrest were mentioned in the Arrest Memo as well as in the Notice under Section 47 BNSS, except the case number and the Sections under which he is arrested, and accordingly they have also filed an additional affidavit to that effect. He further submitted that the grounds of arrest are mandatorily required to be mentioned in the Arrest Memo as well as in the Notice under Section 47 BNSS and non-compliance/non-mentioning of the same is in violation of Articles 21 & 22(1) of the Constitution of India. He further submitted that the Notice issued to the family members of the present petitioner under Section 48 BNSS also did not disclose any grounds of arrest which is also mandatorily required to be complied with. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the Page No.# 4/10 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. Accordingly, Mr. Choudhury, submitted that without even going into the detail of the merit of the case, the present petitioner is entitled to bail. 6. In support of his submissions, Mr. Choudhury, learned Senior 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. Baruah, learned Additional Public Prosecutor, submitted in this regard that at this stage the evidence of the witnesses may not be appreciated, however, there are sufficient incrimination in the evidence of the PW-1/victim and from her evidence, it reveals that after the incident, she was in a depressed state and the Court also advised her to take treatment with the medical consultant. However, subsequently, she appeared before the Court and adduced her evidence. He further submitted that considering this aspect of the case, the prayer for bail may not be considered at this stage as the evidences of 8 (eight) numbers of witnesses are yet to be examined by the prosecution. In regards to the issue raised by the learned Senior Counsel for the petitioner in regards to non-mentioning of grounds arrest, he submitted that there may not be any Page No.# 5/10 written communication for grounds of arrest, but from the materials available in the Case Diary, it is very much evident that the accused was informed about the grounds of arrest orally during investigation and hence, he raised objection in granting bail to the accused/ petitioner. 8. Mr. Haque, learned counsel appearing on behalf of the respondent No. 2/informant, submitted in this regard that after the incident, the victim has become mentally weak and she is still suffering from mental agony. There are eye witnesses to the incident, however one of the eye witnesses has already been examined by the prosecution and there is every probability of hampering or influencing the evidences of the other witnesses if the present accused/petitioner is released on bail at this stage. 9. 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 Arrest Memo and the Notice issued to the present accused/petitioner. It is accordingly seen that while issuing the Arrest Memo as well as the Notice, 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 Arrest Memo as well as in the Notice. Thus, it is the admitted position that the grounds of arrest were 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.# 6/10 10. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 47 of BNSS, corresponding to Section 50(1) of Cr.P.C., 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. 11. 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.# 7/10 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.” 12. 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.# 8/10 13. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as 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. 14. 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.” 15. In view of the entire discussions made above, it is the considered opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage as the trial has already commenced and the lots of witnesses are Page No.# 9/10 yet to be examined by the prosecution. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Arrest Memo as well as the Notice issued to the present accused/petitioner under Section 47 BNSS, this Court find it a fit case to extend 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) sureties of like amount to the satisfaction of the learned Special Judge (POCSO), Morigaon, Assam, 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 (POCSO), Morigaon, Assam, 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 Aadhar Card and PAN Card before the Special Judge (POCSO), Morigaon, Assam; and (iv) that the petitioner shall not leave the jurisdiction of the Special Page No.# 10/10 Judge (POCSO), Morigaon, Assam, without prior permission. 17. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant