Page No.# 1/8 GAHC010187532025 2025:GAU-AS:16002 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2720/2025 DHAN KUMAR DEKA SON OF LATE DEBENDRA NATH DEKA RESIDENT OF CHANDAN NAGAR, TRIBENI PATH, HOUSEN O.7, SIXMILE, P.S. DISPUR, PIN-781022, DIST. KAMRUP (METRO), ASSAM PERMANENT RESIDENT OF LAWLSHUGA, P.S. MORIGAON, DIST. MORIGAON, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. A M BORA, MR. M S HUSSAIN,MR. V A CHOWDHURY,MR. D GAGAI Advocate for the Respondent : PP, ASSAM, Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 25.11.2025 1. Heard Mr. A.M. Bora, learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State. 2. This is an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with prayer for bail in respect of the petitioner, namely, Dhan Kumar Deka, who is behind bars since 12.08.2025 in connection with Chandmari P.S. Case No. 203/2025 u/s 316(2) /318(4) /319(2) /336(3) /338/61(2) (a) of BNS Act, 2023. 3. Mr. Bora, the learned counsel for the petitioner submitted in this regard that three FIRs have been lodged against the present petitioner at three different police stations with the same kind of allegation and cause of action. In the first FIR lodged against the present petitioner he was granted anticipatory bail and in the second FIR, the present petitioner was arrested on 10.08.2025 under Noonmati P.S. Case No. 155/2025 and on the same day i.e. 10.08.2025, the petitioner was allowed to go on bail due to non- furnishing of grounds of arrest by notices u/s 47/48 BNSS. The petitioner was accordingly released on 11.08.2025 and thereafter in connection with the present FIR, the petitioner was arrested in front of the jail itself in connection with the present case i.e. Chandmari Page No.# 3/8 P.S. Case No. 203/2025 which in total violation of law laid down in case of Kamal Dutta v. Union of India, reported in (2015) 3 GLR 346. 4. Mr. Bora further submitted that while issuing the Forwarding Report in connection with the second FIR though there is a mention about the pendency of the Chandmari police station case number. There was no further detail as to whether the petitioner is wanted in connection with the said case or not. 5. In para 23 of the above referred judgment it has been held that :- “Arresting the accused in a different case from outside the Court he was granted bail without disclosing to the Curt about the need to arrest him in another case is wholly unacceptable.” 6. Mr. Bora further submitted that the Hon’ble Apex Court in case of Uday Chand Vs. Sheikh Mohd Abdullah, Chief Minister, J&K And Others, reported in (1983) 2 SCC 417, has deprecated the practice of withholding information from the Court about the requirement to arrest the accused in another case, which was in the knowledge of the State authorities where the said accused person may be required for custody, so that the accused may take necessary steps in such pending cases, for safeguarding his repeated arrest one after another in such pending cases. 7. He further submitted that except the mention of the number of the case there is no mention as to whether the petitioner is wanted in the said case while furnishing the Forwarding Report of the said case. He further submitted that admittedly both the cases Page No.# 4/8 were registered for the similar allegation on the same date but surprisingly the petitioner was not arrested in connection with the present case and after his release in the case of Noonmati PS, immediately he was arrested from outside the jail premises. So, there is no mention as to what prevented the Investigating Officer to arrest the present petitioner on the same day as the cases were registered in both the police stations on the same day. 8. Mr. Bora further raised the issue of non-furnishing the grounds of arrest to the family members of the present petitioner as required u/s 48 BNSS. It is submitted that from the Notice issued u/s 48 it is seen that the said Notice was issued to the wife of the petitioner through WhatsApp as it reveals from the N.B. mentioned in the notice u/s 48 BNSS. Further surprisingly another notice u/s 48 BNSS was issued to one Mobidul Islam, who is no way connected with the present petitioner nor he has any relation with the petitioner or there is any mention that the petitioner authorized the same person for receiving any notice u/s 48 BNSS. He further submitted that notice u/s 35 BNSS or 48 BNSS cannot be sent through WhatsApp or any other electronic mode except the mode prescribed under Cr.PC or BNSS. 9. In this connection, he relied on a decision of the Hon’ble Supreme Court passed in Miscellaneous Application No. 2034/2022 in M.A. No. 1849/2021 in SLP (Criminal) No. 5191/2021 dated 21.01.2025 (Satender Kumar Antil v. Central Bureau of Investigation & Another) and basically emphasized the direction made by Hon’ble Supreme Court which is cited below:- Page No.# 5/8 “All the States/UTs must issue a Standing Order to their respective Police machinery to issue notices under Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 only through the mode of service as prescribed under the CrPC, 1973/BNSS, 2023. It is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognized as an alternative or substitute to the mode of service recognized and prescribed under the Cr.PC, 1973/BNSS, 2023.” 10. Mr. Bora further submitted that in case of Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269, the Hon’ble Apex Court also expressed the view that the grounds of arrest has to be in written form to a person arrested in connection with the offence and should be imparted effectively and in the language which the accused or relative understands. In the instant case, it is seen that two notices u/s 48 BNSS were shown to be issued, one through WhatsApp to the wife of the petitioner and another was issued on a person who is not even connected with the present petitioner and the same was also furnished in English though it was observed in the notice that “the grounds of arrest even communicated to the relative-cum-colleague of the accused-person in Assamese which he understands.” Thus, in the one hand, it is observed by the I/O that the person whom the notice was issued understands Assamese but, the Notice was issued only in English. 11. Mr. Lahkar, the learned Additional Public Prosecutor submitted that if there is no prejudice caused to the petitioner for any procedural lapse, it cannot be a ground for release on bail and this observation is made in paragraph 20.1.7 in a judgment of the Page No.# 6/8 Hon’ble Apex Court reported by 2025 SCC OnLine SC 1702 (State of Karnataka v. Sri Darshan etc.) which reads as under:- “20.1.7. In the present case, the arrest memos and remand records clearly reflect that the respondents were aware of the reasons for their arrest. They were legally represented from the outset and applied for bail shortly after arrest, evidencing an immediate and informed understanding of the accusations. No material has been placed on record to establish that any prejudice was caused due to the alleged procedural lapse. In the absence of demonstrable prejudice, such as irregularity is, at best, a curable defect and cannot, by itself, warrant release on bail. As reiterated above, the High Court treated it as a determinative factor while overlooking the gravity of the charge under Section 302 IPC and the existence of a prima facie case. Its reliance on Pankaj Bansal and Prabir Purkayastha is misplaced, as those decisions turned on materially different facts and statutory contexts. The approach adopted here is inconsistent with the settled principle that procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail.” 12. In that context, Mr. Bora submitted that the said order was passed in connection with the issuance of Notice u/s 47 BNSS wherein the warrant was issued against the appellant and thus the said case is not relevant in the instant case. 13. On perusal of the record, it is seen that although there is mention about the Chandmari P.S. Case in the present forwarding report but there is no indication as to whether the petitioner was wanted in the said case. In other words, the need for his arrest in the said case, which is different from indicating the registration of Page No.# 7/8 such a case was not apprised to the Court, which as has held by this Court in Kamal Dutta (Supra) is wholly unacceptable in case the petitioner was to be arrested in the second case. In Uday Chand (Supra), the Apex Court deprecated the practice of withholding information from the Court about the requirement to arrest the accused in other cases. 14. Further, admittedly, the notice under Section 48 BNSS was stated to have been served upon the family member of the petitioner by WhatsApp, which is impermissible in view of the directions of Hon’ble Supreme Court in Satender Kumar Antil (Supra). The other notice under Section 48 BNSS was served on one Mobidul Islam and as per note of the I.O in the case diary, the petitioner identified him as his colleague and family friend. 15. But it is not necessary to determine the issue for the present purpose because of the other lapses on the part of the I.O as adverted to hereinbefore, which fall outside the purview of Vihaan Kumar (Supra) and Sri Darshan (Supra), for which the petitioner would be entitled to grant of bail. 16. It is submitted by the learned Additional Public Prosecutor that the petitioner has violated the interim bail conditions, in which case it would be open for the Prosecution to prefer appropriate application for cancellation of bail. 17. In view of the aforesaid lapses on the part of the Investigating Officer, the prayer for bail is allowed. 18. The order of interim bail dated 21.08.2025 is hereby made Page No.# 8/8 absolute subject to the conditions no.(ii) and (iii) imposed therein. 19. Accordingly, this bail application stands disposed of. JUDGE Comparing Assistant