Page No.# 1/7 GAHC010210062025 2025:GAU-AS:15513 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3111/2025 NAKUL ISWARY S/O- LATE JAGAT ISWARY R/O- VILLAGE - UTTAR RUNIKHATA , P.S- RUNIKHATA DISTRICT- CHIRANG, ASSAM . VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR , STATE OF ASSAM. Advocate for the Petitioner : MS. G DEKA, MR. K UDDIN,T M LAHKAR,MR K K KALITA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER Date : 17.11.2025 1. Heard Mr. K.K. Kalita, learned counsel for the petitioner. Also heard Mr. K. Baishya, learned Addl. Public Prosecutor for the State respondent. 2. This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking bail in respect of the accused/petitioner namely Nakul Iswary in connection with Session Case TI No. 73/2024 Page No.# 2/7 under Section 120(B)/302, IPC read with Section 25(1-A)/27/35 of the Arms Act pending before the learned Sessions Judge, Bongaigaon corresponding to Bongaigaon P.S. Case No. 226/2024. 3. On 26.06.2024, one Nilima Kachari lodged an FIR with O.C. Bongaigaon P.S alleging inter alia that on that day at about 9:30 a.m., her husband had gone to Chiponchila G.P office and at about 3:00 pm when she was sitting in the tea stall of one Dharani Medhi, two miscreants coming by riding a motor cycle shoot and killed her husband infront of the tea stall. On receipt of the FIR, the O/C Bongaigaon Police Station has registered a case vide Bongaigaon P.S. Case No. 226/2024 under Section 302, IPC read with Section 25(1- A)/27/35 Arms Act. 4. Subsequently, Charge–sheet was submitted on 23.09.2024 and charges were framed under Section 120(B)/302, IPC read with Section 25(1A)/27(2) (3)/35, Arms Act against the petitioner and the accused pleaded not guilty, accordingly, the case was proceeded for evidence. 5. At present, the trial is proceeding and 14 out of the 78 Prosecution Witnesses have been examined. The learned counsel for the petitioner submitted that the notice under Section 50 Cr.PC issued to the accused does not contain any grounds of arrest, whereas, no notice under Section 50 A Cr.PC was furnished to the friend or relative of the accused. Therefore, keeping in view that the decision of the Hon’ble Supreme Court in Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 as well as in Vihaan Kumar Vs. State of Haryana & Anr., reported in 2025 SCC OnLine SC 269, the accused is entitled to be released on bail. It is also submitted that the petitioner has spend more than a year in jail and out of the 78 witnesses, only Page No.# 3/7 14 have been examined so far and hence, the trial will take a long time to conclude. 6. It is further submitted that there is no material against the present accused except the statements of the co-accused persons, which are inadmissible in evidence. 7. Per contra, the learned Addl. Public Prosecutor has submitted that the material available on record thoroughly incriminates the accused person which is why the Charge-sheet has been submitted against him alongwith the other accused persons. With regard to non-furnishing the grounds of arrest, as required under Section 50 and 50A of Cr.PC, the learned Addl. Public Prosecutor had placed reliance upon the decision of the Hon’ble Supreme Court in the case of State of Karnataka Vs. Sri Darshan, reported in 2025 SCC Online SC 1702, wherein it has been held that mere non-furnishing of the grounds of arrest would not be ipso facto vitiate the arrest and the test of prejudice is required to be applied. 8. I have perused the materials on record, more particularly the order sheets of the Magistrate as well as the notice under Section 50 Cr.PC furnished to the accused. 9. A bare perusal of the said notice would show that the accused was simply informed of his arrest in Bongaigaon P.S. Case No. 226/2024 under Section 302, IPC read with Section 25(1-A)/27/35 Arms Act. There is no mention of a single ground of arrest. Mere mentioning of the case number or the Sections of law under which the case has been registered would not provide sufficient indication to the accused as to the grounds specific to him upon which his arrest has been deemed necessary by the Police. Page No.# 4/7 10. The Hon’ble Supreme Court in Prabir Purkayastha (supra) held : “30. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be. 31. Furthermore, the provisions of Article 22(1) have already been interpreted by this Court in Pankaj Bansal Vs. Union of India and Others, laying down beyond the pale of doubt that the grounds of arrest must be communicated in writing to the person arrested of an offence at the earliest. Hence, the fervent plea of learned ASG that there was no requirement under law to communicate the grounds of arrest in writing to the accused appellant is noted to be rejected.” 11. The learned Addl. Public Prosecutor has referred to the State of Karnataka Vs. Sri Darshan (supra), to submit that the test of prejudice is to be applied in the event that the grounds of arrest are not furnished in the required manner to the accused at the time of his arrest. 12. It has been held in the State of Karnataka Vs. Sri Darshan (supra) as follows:- “ 20.1.3. The constitutional and statutory framework thus mandates that the arrested person must be informed of the grounds of arrest – but neither provision prescribes a specific form or insists upon written communication in every case. Judicial precedents have clarified that substantial compliance Page No.# 5/7 with these requirements is sufficient, unless demonstrable prejudice is shown. 20.1.4. In Vihaan Kumar v. State of Haryana 22, it was reiterated that Article 22(1) is satisfied if the accused is made aware of the arrest grounds in substance, even if not conveyed in writing. Similarly, in Kasireddy Upender Reddy v. State of Andhra Pradesh 23 , it was observed that when arrest is made pursuant a warrant, reading out the warrant amounts to sufficient compliance. Both these post- Pankaj Bansal decisions clarify that written, individualised grounds are not an inflexible requirement in all circumstances. 20.1.5. While Section 50 Cr.P.C is mandatory, the consistent judicial approach has been to adopt a prejudice-oriented test when examining alleged procedural lapses. The mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend. 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 (2024) 7 SCC 576 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 Page No.# 6/7 procedural lapses in furnishing grounds of arrest, absent prejudice, do not ipso facto render custody illegal or entitle the accused to bail.” 13. A Division Bench of this Court in the case of National Investigation Agency Vs. Thangminlen Mate @ Lenin Mate in Crl.A. No. 234/2025 has held that there appears to be a dichotomy of views in the decision of the Hon’ble Supreme Court in State of Karnataka Vs. Sri Darshan (supra) and Vihaan Kumar Vs. State of Haryana & Anr(supra) and referring to the decision of the Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680, wherein it was held that if there are conflicting decisions of equal Benches of the Supreme Court, the earlier decision should be followed by the High Courts, has held that the earlier decision of the Supreme Court, i.e., Vihaan Kumar (supra) would have to be followed. 14. As already indicated above, the notice under Section 50 Cr.PC does not disclose any grounds of arrest. Further, a perusal of the Magistrates order sheets reveal that by Order dated 01.07.2024, the accused person was remanded to Police custody and while doing so, a Legal Aid Counsel was appointed to represent the accused. However, no application for bail was filed on behalf of the accused, and as revealed by the Magistrate’s Court, none was filed up till the time the case was committed to the Sessions Court. It was only on 10.07.2024 that a bail petition filed on behalf of the accused was rejected by the learned Magistrate, considering the gravity of the offence, but without recording any reasons specific to the accused. 15. The above goes to show that at no point of time after the arrest of the petitioner on 01.07.2024 till about 10.07.2024 when his prayer for bail was Page No.# 7/7 rejected, was the accused furnished with the grounds of arrest. The fact that a Legal Aid Counsel was appointed is not sufficient to show that the accused was in a position to oppose the prayer for remand either on the first date or any other subsequent dates, moreso, as no bail application was submitted on behalf of the accused during this entire period as indicated above. Therefore, the prejudice caused to the accused is demonstratable or self evident. Therefore, even keeping aside the question of dichotomy between the decisions of the Supreme Court in Vihaan Kumar (supra) and Sri Darshan (supra), by any standard, it must be held that there was total non-compliance with the requirements of Section 50 Cr.PC and consequently Article 22(1) of the Constitution of India, thereby vitiating the arrest of the accused, having regard to the decisions of the Hon’ble Supreme Court referred to above. 16. Consequently, the bail application stands allowed. 17. The accused above named shall be released on bail of Rs. 50,000/- with 2 sureties of like amount to the satisfaction of the learned Session Judge, Bongaigaon. JUDGE Comparing Assistant