Page No.# 1/10 GAHC030001982025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./12/2025 Sh. Abdul Khalik Chandmari West, Aizawl VERSUS The State of Mizoram and Anr. Aizawl2:Mr. Ricky Lalngaihzual Advocate for the Petitioner : Mr. Daiyan Hussain Advocate for the Respondent : P.P./Addl.PP, Mizoram ORDER BEFORE HONOURABLE MR. JUSTICE NELSON SAILO 08.04.2025 Heard Mr. D. Hussain, learned counsel for the applicant and Ms. Mary L. Khiangte, learned Addl. Public Prosecutor, Mizoram for the respondent. By filing this application under Section 483 of the BNSS, 2023, the applicant prays for grant of regular bail. [2.] It is the case of the applicant that he was arrested on 07.02.2025 pursuant Page No.# 2/10 to the FIR lodged by the complainant and A.W P.S Case No. 8/2025 dated 07.02.2025 being registered under Section 6/2012 of the POCSO Act read with Section 126(2)/127(2)/351(2) of the BNS. [3.] The learned counsel for the applicant submits that the main ground taken by the applicant for his release on regular bail is due to non-compliance of Section 47 & 48 of the BNSS, which again has resulted in violation of the Fundamental Rights of the applicant provided by Article 22(2) and (5) of the Constitution of India. The learned counsel submits that in respect of the nature of allegation made against the applicant, the law will take its own course but since there has been non-compliance of the provisions of Section 47 & 48 of the BNSS, the applicant should be released on bail pending conclusion of the investigation. In support of his submission, the learned has relied upon the following Apex Court decisions:- (1) Judgment dated 15.05.2024 passed in Criminal Appeal No. ……/2024 (D.No. 42896/2023) [Prabir Purkayashtha Vs. State (NCT of Delhi)]. (2) Judgment dated 06.02.2025 passed in Criminal Appeal No.…./2025 arising out of SLP(Criminal) No. 13320/2024 (Vihaan Kumar Vs. State of Haryana & Anr.) 2025 INSC 162 & Page No.# 3/10 (3) Order dated 25.03.2025 passed in Criminal Appeal No. 1518/2025 (Ashish Kakkar Vs. U.T of Chandigarh). [4.] The learned counsel has also relied upon the orders passed by a coordinate Bench of this Court as follows: (1) Order dated 11.03.2025 passed in Bail Application No. 576/2025 (Mahbubul Hoque Vs. State of Assam) (2) Order dated 13.03.2025 passed in Bail Application No. 3081/2024 (Jasir Uddin Barbhuiya & Anr. Vs. State of Assam) (3) Order dated 26.03.2025 passed in Bail Application No. 683/2025 (Joynal Hussen Alias Joynal Hussain & Anr. Vs. State of Assam) & (4) Order dated 28.03.2025 passed in Bail Application No. 933/2025 (Harekkrishna Deb Nath @ Hara Krishna Debnath Vs. State of Assam) [5.] Ms. Mary L. Khiangte, learned Addl. Public Prosecutor on the other hand submits that there has been no violation of Section 47 & 48 of the BNSS as alleged by the applicant. She submits that as per the arrest memo prepared under Section 35 of the BNSS, the reasons and grounds of arrest of the applicant has been clearly informed to him. Similarly, the same information was shared to the contact person/relative of the applicant and both of them have Page No.# 4/10 given their signature in the arrest memo. Likewise, the applicant has also been intimated about the grounds of his arrest separately in terms of Section 47(i) of the BNSS and likewise, a similar intimation has been given to the contact person/relative of the applicant on the day of arrest itself i.e., 07.02.2025. She further submits that a memo of arrest was also prepared under Section 36(b)(i) (ii) of the BNSS and which was duly counter signed by the applicant, the witness who is the acquaintance/relative of the applicant and the Investigating Officer. She therefore submits that the requirements under the provisions of BNSS having been duly complied with, there is no merit in the bail application and the same should be rejected. She further submits that in so far as the other accused persons named by the victim, the Investigating Officer could not locate their whereabouts and their actual identity and therefore contemplates submitting the charge sheet as per the present status and perhaps will submit a supplementary charge sheet when further information about the co-accused persons is secured. The case Investigating Officer is therefore in the process of consulting the superior officers to take this step. The learned Addl. Public Prosecutor has also produced the original Case Diary in support of her submissions. [6.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the Case Page No.# 5/10 Diary. As already stated I the preceding paragraph, the main grounds for seeking bail by the applicant is on account of non-compliance of Section 47 & 48 of the BNSS. Section 47 & 48 of the BNSS are abstracted hereunder for ready perusal:- “47. (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. 48. (1) Every police officer or other person making any arrest under this Sanhita shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his relatives, friends or such other persons as may be disclosed or mentioned by the arrested person for the purpose of giving such information and also to the designated police officer in the district. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. Page No.# 6/10 (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as the State Government may, by rules, provide. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.” [7.] From the above abstract, it may be seen that under Section 47, when as person is arrested without warrant, he shall be communicated with full particulars the offence for which he is arrest or the grounds of such arrest. Under Section 48, the person who makes the arrest is to forthwith give the information regarding the arrest and other details to any of the relatives, friends or other persons disclosed or nominated by the person arrested. [8.] In the present case, the arrest memo arresting the applicant was prepared under Section 35 of the BNSS, which contains the particulars such as, name and address of the applicant, his contact number, his present and permanent address, the details of the FIR lodged against him, time and place of arrest and the name and address of the person to whom the arrest of the applicant is to be conveyed. Further, the arrest memo also contains the satisfaction of the arresting authority that such arrest is necessary to prevent Page No.# 7/10 commission of further offence by the applicant, for proper investigation of the offence, to prevent tampering with the evidence etc. The arrest memo has been duly signed by the applicant, his witness and the case I/O. In addition to the arrest memo, the intimation of the arrest has been provided under Section 47(1) of the BNSS wherein, the particulars of the case registered against the applicant and the relevant Sections of law has also been written. The arrest intimation has been given both to the applicant as well as his witness who have also subscribed their signature as a token of receipt of the same. In addition to this, a memorandum or arrest has also been prepared under Section 36(b)(i)(ii) of the BNSS, which has been countersigned by the applicant, his witness and the case I/O. [9.] Reliance has been placed on the case of Prabir Purkayastha (supra) by the learned counsel for the applicant wherein, the Apex Court stressed the requirement of informing reasons for arrest and the grounds for arrest to the person being arrested. The Apex Court held that there is a distinction between the reasons for arrest and the grounds for arrest. The reasons of arrest are indicated in the arrest memo which are purely formal para-meters and as for the grounds of arrest, the same would require to contain any such details in hand of the Investigating Officer which necessitated the arrest of the accused and must Page No.# 8/10 be conveyed in writing. [10.] In the instant case, it may be seen that an arrest memo was prepared by the I/O on 07.02.2025 containing the name, contact number and address of the applicant and also the name and address of the person to whom such information was given apart from the applicant. The same has been prepared as per the stipulation of Section 35 of the BNSS. The memo of arrest has also been received by the applicant and his witness. Further, the intimation of arrest has also be given to the applicant and to his contact person/witness stating that the applicant has been arrested on the ground that he has been found to have violated the provisions of Section 6/12 of the POCSO Act read with Section 126(2/127(2)/351(2) of the BNS. Section 6 of the POCSO Act provides for punishment for aggravated sexual assault while Section 12 provides for punishment for sexual harassment. Section 126 (2) of the BNS provides for punishment for wrongful restraint while Section 127 (2) provides for punishment for wrongful confinement and Section 351(2) provides for punishment for criminal intimation. The arrest memo, the intimation of arrest and memo or arrest has been duly countersigned by the applicant and his relative/witness i.e., Asuk Uddin. Besides, the applicant earlier had approached the Special Court under the POCSO Act, Aizawl through Bail Application No. 146/2025 seeking bail Page No.# 9/10 and the same was rejected by the Court vide order dated 19.03.2025. A copy of the order dated 19.03.2025 passed by the Special Court is annexed as Annexure – 7 to the instant bail application. [11.] A perusal of the order rejecting bail shows that the ground for seeking bail was that the applicant was not a habitual offender and did not have past criminal record. The allegation against him was false and was on account of certain misunderstanding with the victim’s family for repayment of the money borrowed. The violation of Section 47 & 48 of the BNSS appears to have not been urged before the court below for grant of bail. [12.] Be that as it may, upon perusal of the materials available on record, it cannot be said that there has been non-compliance of Section 47 & 48 of the BNSS. Therefore, this Court is not inclined to grant bail to the applicant. [13.] In view of the conclusion arrived at, discussion on the remaining authorities relied upon by the learned counsel for the applicant is found to be not necessary. Accordingly, the bail is rejected. The original case diary be returned to the learned Addl. Public Prosecutor. JUDGE Page No.# 10/10 Comparing Assistant