Page No.# 1/9 GAHC040019082025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : BA/144/2025 Smti Tage Yama Dulom Wife of Late Tater Dulom, permanent resident of Dulom village, PO and PS Daporijo, Upper Subansiri District, Arunachal Pradesh. VERSUS The State of AP and Anr through the PP of AP 2:Miss Y Age: 0 Occupation : Daughter of Shri Suisa Wangsu permanent resident of Ponchau Village Longding District Arunachal Pradesh Advocate for the Petitioner : Rajesh Sonar, M Basar,Khyoda Yayo,Michi Khambo,Binny Nyaruce,R Taku Advocate for the Respondent : P P of AP, Legal Aid Counsel,S V Darang BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER Date : 27-01-2026 1. Heard Mr. B Nyaruce, learned counsel for the petitioner. Also heard Ms. L Hage, learned Additional Public Prosecutor representing the State of Arunachal Pradesh. Page No.# 2/9 2. This is the third bail application made under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking bail by the accused/ petitioner, namely, Sh. Terkey Dulom @ David, who was arrested on 30.10.2024 in connection with LDG/PS/Case No. 48/2024 under Sections 64/96/143(1)(f)/61(1)(a)/3(5) of BNS, 2023 read with Section 3/5 of Immoral Traffic (Prevention) Act and Section 6 of POCSO Act, 2012. 3. The genesis and the background of the case is that as many as four FIRs were lodged by different victims and one of such FIR as registered as LDG/PS/Case No. 48/2024 under Section 64/96/143(1) (f)/61(1)(a)/3(5) of BNS, 2023 read with Section 3/5 of Immoral Traffic Prevention Act and Section 6 of the POCSO Act, 2012. 4. The brief fact of the case is that the co-accused wife of the petitioner/ accused is running a bar cum restaurant at Itanagar, and she contacted the victims to do a job for a salary of Rs. 7,000/- with free lodging and food. Most of the informants are minors, and they are school dropouts. On the promise of such a job, they joined as waitress in the restaurant cum bar belonging to the wife of the present petitioner/ accused, and according to them, they were forced to wear indecent dress and make up to satisfy the customers coming to the bar and were also asked to dance and were forced to have sex with some customers. It is the specific case of the informant in the present case that the present petitioner/ accused raped her. Three of the victims were planning to flee from the restaurant; however, another co-accused, namely, Lily, a lady, was brought to the restaurant by the wife of the petitioner, and she introduced herself as a police official and threatened that if they try to flee, they would be punished and Lily would find them from any place. According to the victim, hearing this, one night at around 3 a.m., when everyone was drunk and enjoying themselves, they slowly left the DJ Page No.# 3/9 room, came from the restaurant and reached their residences. Subsequently, the informant came to know that some of the other victims had lodged FIRs, and therefore, she talked to her other friends and decided to speak up, came to Longding and met the workers of CWC, Longding. Accordingly, the FIR was lodged. 5. Mr. B Nyaruce, the learned counsel for the accused/applicant, submits that non-disclosure of grounds of arrest amounts to a violation of the right of the petitioner under Article 22(1) of the Constitution of India and therefore, the arrest itself is illegal. Accordingly, the petitioner is required to be released on bail. According to Mr Nyaruce, when the arrest itself is unlawful, the custody is equally tainted; therefore, bail must follow. 6. It is further contended the learned Special Judge (POCSO) has also failed to protect the right of the petitioner and, without applying the mind, the accused was sent to the police remand. 7. In support of contentions, Mr. Nyaruce, learned counsel for the petitioner places reliance on the judgments of the Hon’ble Apex Court passed in Kasireddy Upendra Reddy vs. State of Andhraa Pradesh and Ors. reported in (2025) SCC Online SC 1228, Pankaj Bansal vs. Union of India and Ors. reported in (2024) 7 SCC 576, Vihaan Kumar Vs State of Haryana & Anr. reported in (2025) SCC Online SC 269 and Prabir Purkayastha vs. State (NCT of Delhi) reported in (2024) 8 SCC 254. 8. Per contra learned Additional Public Prosecutor, Arunachal Pradesh referring to the judgment of the Hon’ble Apex Court in Kasireddy Upendra Reddy vs. State of Andhraa Pradesh and Ors. reported in (2025) SCC Online SC 1228 argues that when a person is arrested on an warrant, the written ground of arrest is not required to be furnished inasmuch as explaining the ground of arrest orally shall satisfy the requirement under Page No.# 4/9 Article 22(1) of the Constitution of India. 9. I have heard the learned counsel for the parties. Also perused the case record, the orders of the learned Special Judge, arrest memo etc. 10. It is important to record herein that while the petitioner was in custody in other connected cases, the investigating officer of LDG/PS/Case No. 48/2024 filed an application before the Special Judge (POCSO) seeking permission to show the accused to be arrested in connection with the aforesaid case. 11. The learned Special Judge, by its order dated 28.10.2024, allowed the application and, accordingly, issued a production warrant directing the Jail Superintendent, Longding, to hand over the accused person to the I/O for his production before the court on 30.10.2024. 12. The record further reveals that the accused was arrested on 30.10.2024 at 07:30 Hrs, and an arrest memo was issued to him. Thereafter, on the same date, the accused was produced before the learned Special Judge (POCSO), who remanded him to police custody. 13. Subsequently, the accused preferred a bail application before the learned Special Judge, which was rejected. 14. The contention of the accused/ petitioner as regards non- disclosure of grounds of arrest/non-intimation of such arrest to his near friends and family was rejected by the learned Special judge, for the reason that the accused was not directly arrested but was already detained in custody in connection with Longding PS case No. 38/2024 under similar Sections and that the arrest was permitted by the court. The learned Special Judge further recorded that, in cases of showing arrest, the accused is heard in person and therefore, no ground of arrest is required to be furnished. 15. Accordingly, it was concluded that when the court has Page No.# 5/9 allowed the arresting authority to show the accused to be arrested, the right of the accused to be informed is not necessary. 16. The constitutional issue raised in the present bail application goes to the very root of personal liberty and is not dependent on the merits of the allegation. The court is therefore required to examine as a threshold issue whether the initial deprivation of liberty suffered by the petitioner satisfies the minimum constitutional safeguard guaranteed under Article 22(1) of the Constitution of India. 17. Article 22(1) embodies two inseparable guarantees. Firstly, the right of an arrested person to be informed as soon as may be of the grounds of the arrest and secondly, the right to consult and be defended by a legal practitioner of his choice. 18. The first guarantee is foundational, for unless the arrestee is informed of the grounds of arrest, the second right becomes illusory. 19. The purpose of communicating grounds of arrest is not merely informational; it is to enable the arrestee to challenge the legality of the arrest, seek appropriate legal remedies, and oppose remand. 20. The constitutional requirement operates independently of statutory provisions and binds all authorities exercising the power of arrest. 21. The Hon’ble Apex Court in Pankaj Bansal (supra), held that the obligation to communicate grounds of arrest is substantive and enforceable and that mere awareness of the offence or FIR does not amount to compliance. The court cautioned that dilution of this requirement would reduce Article 22(1) to an empty formality. 22. In the present case, as recorded herein above, the petitioner was already in judicial custody in connection with other cases. When the Investigating Officer sought permission to show him arrested in the Page No.# 6/9 present case, the learned Special Judge, under its order dated 30.10.2024, allowed the prayer and issued the production warrant. Accordingly, the petitioner was arrested on 30.10.2024 and was also produced before the learned Special Judge (POCSO) on the same date on the basis of the warrant of production, and the learned Special Judge (POCSO) remanded the accused to police custody on the same date. This factual scenario is very significant. 23. A person already in custody is entirely dependent on constitutional and judicial safeguards, as he has no practical freedom to seek counsel or challenge further deprivation, unless informed of the grounds of arrest. For this reason, the Hon’ble Supreme Court in Kasireddy Upender Reddy vs. State of Andhra Pradesh, reported in 2025 SCC Online 228, held that custodial arrest requires stricter, not diluted, compliance with Article 22(1). 24. The concept of “showing arrest” is a legal fiction created for investigative convenience. However, constitutional protection attaches to the substance of deprivation of liberty, not to the terminology employed by the investigating agency. Once a person is arrested in a new case, even while in custody, Article 22(1) is immediately attracted. 25. The prosecution's argument that communications of grounds of arrest are unnecessary, because the arrest was pursuant to a warrant or judicial order, is fundamentally flawed. A warrant or production order merely authorises the physical custody of the accused. It does not communicate to the accused why his liberty is being curtailed in a particular case. 26. Article 22(1) does not distinguish between arrest with a warrant or without a warrant, arrest in freedom or arrest in custody, arrest by police or arrest pursuant to a court order. This position is clarified by a Page No.# 7/9 long line of decisions in which the Hon’ble Supreme Court held that the source of authority for arrest is immaterial, so long as the consequence is the deprivation of personal liberty. 27. What is constitutionally required is actual communication of grounds, not inferential knowledge. Even in State of Karnataka versus Darshan Etc. reported in (2025) SCC Online SC 1702, relied upon by the prosecution, does not create an exception for a warrant of arrest. It merely clarifies that written communication may not be mandatory in all cases, but some contemporaneous material must exist to show that grounds were in fact communicated. 28. The prosecution in the present case has failed to point out any such material. 29. The prosecution has also failed to show that even on the production of the petitioner before the Special Judge (POCSO) on 30.10.2024, the petitioner was neither informed by the Special Judge (POCSO) of the reason for his arrest, nor was there any communication to his family or friends as regards his arrest and he was straight away remanded to police custody in connection with the present case. 30. Even while arresting the accused, the arresting authority did not inform the relative or friend of the petitioner of the arrest. 31. The arrest memo dated 30-10-2024 does not record any ground of arrest. It merely lists the case number and the sections invoked, along with certain tick marks in the printed arrest memo relating to grounds of arrest. There is no material, even remotely, suggesting that his arrest was communicated to his family or close friends. This is legally insufficient. 32. Mere mentioning of sections of law does not amount to communicating grounds of arrest, as grounds must disclose the basic Page No.# 8/9 facts and reasons necessitating the arrest. As recorded hereinabove, there is no material to show that petitioner's relatives or friends were informed of the ground of arrest, which is an integral procedural safeguard recognised as part of Article 22 jurisprudence. 33. Once the petitioner specifically asserts a violation of Article 22(1), the burden shifts entirely to the prosecution to establish compliance. This burden has not been discharged in the present case. Constitutional compliance cannot be presumed; it must be demonstrated. 34. The grant of police remand on 30-10-2024 does not cure the constitutional defect. It is by now well settled that the judicial remand cannot sanctify an unconstitutional arrest. If the arrest is illegal at inception, all subsequent custody becomes constitutionally vulnerable. 35. Accordingly, when this court has concluded that the accused has been deprived of his liberty in breach of Article 22(1), it has no discretion to condone such a violation. 36. The only constitutionally permissible course is to restore liberty subject to lawful conditions. In the present case, considering that the petitioner is in judicial custody and the investigation has been completed, he has been enlarged on bail in all other connected cases; the trial is a joint trial involving all the cases, release of the petitioner on bail with appropriate conditions, in the considered opinion of this Court, sufficiently balances the interest of justice. 37. Accordingly, it is directed that the petitioner, namely Sh. Terkey Dulom @ David, be released on bail, on executing a bail bond of Rs. 1,00,000/- (one lac) with two suitable solvent sureties of like amount to the satisfaction of the learned Special Judge, POCSO, Tirap, Changlang and Longding, Khonsa in connection with the KSA/SC(POCSO) Case No. Page No.# 9/9 01/2025 arising out of LDG/PS/Case No. 48/2024. The bail granted to the petitioner shall be subject to the following conditions: I. The petitioner shall not leave the territorial jurisdiction of the learned Special Judge, POCSO, Tirap, Changlang and Longding, Khonsa, without prior written permission from him; II. The petitioner shall not hamper and/or tamper with the evidence of the case; III. The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or to any police officer. IV. The petitioner shall surrender his passport, if any (if not already surrendered), before the learned Special Judge, POCSO, Tirap, Changlang and Longding, Khonsa. V. The petitioner shall furnish the present residential address with proof to the learned Trial Court below and shall not change the said residence without prior permission of the learned Trial Court. VI. The petitioner shall appear before the learned Trial Court on each and every date of appearance during the trial, unless dispensed with by the Trial Court 38. In the aforesaid terms, this bail petition is allowed. JUDGE Comparing Assistant