Page No.# 1/13 GAHC010164322025 2025:GAU-AS:14392 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2434/2025 DR. WALLIUL ISLAM S/O- LATE KASIM ALI. R/O- FLAT NO.4A, 4 TH FLOOR, ROMA ENCLAVE, NEAR ARYA HOSPITAL , REHABARI, P.S.- PALTANBAZAR, DIST.- KAMRUP(M). VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:AKASH MONDAL S/O- SUNIL MONDAL PERMANENT R/O- KALAPAHAR NEAR VIP HOTEL UNDER FATASHIL AMBARI DIST.- KAMRUP(M) ASSAM Advocate for the Petitioner : MR S J CHOUDHURY, MR. BISWAJIT TALUKDAR,MR Z KAMAR,P D CHOUDHURY,MR A SHORIF Advocate for the Respondent : PP, ASSAM, MR. U CHOUDHURY, AMICUS CURIAE FOR R-2 Page No.# 2/13 BEFORE HON’BLE MRS. JUSTICE SHAMIMA JAHAN ORDER 28.10.2025 Heard Mr. Z. Kamar, learned Senior Counsel for the petitioner assisted by Mr. S.J. Choudhury, learned counsel for the petitioner and Mr. P.S. Lahkar, Addl. PP for the State of Assam and Mr. U. Choudhury, learned Amicus Curiae for respondent No. 2. 2. This is an application filed under Section 483 of the BNSS, 2023 by which the petitioner has prayed for bail in connection with Paltan Bazar P.S Case No. 193 of 2023 corresponding to the Sessions (Spl.) Case No. 112 of 2023. 3. The petitioner was arrested on 06.05.2025 and since then, he is in custody.The F.I.R dated 05.05.2023 lodged by one Akash Mandal reveals that a girl child about 3 years of age was badly tortured by her foster parents without any mercy and that the said foster parents used to tie her up under the direct sunlight in the 5th floor of the building in a summer day like an animal without any water and food with the intention to kill the child and which has caused the child deficiency in nutrition. It is also stated that leaving a minor girl without food and water for the whole day under the direct sunlight may also result in the death of the said child. It was further stated that the information was received from the neighbors, who stated that the incident had been happening for the last 15 days and that the child was grievously hurt by the said action of her foster parents. On receipt of ejahar, the Police registered the case under Section Page No.# 3/13 307/325/34/341 IPC read with Section 75 of the Juvenile Justice Act, 2015. 4. Thereafter, another F.I.R was lodged on 08.05.2023, against 4 persons including the petitioner registered as Paltan Bazar P.S Case No. 201 of 2023 under Section 307/341/325/366A/361/368/341 read with Section 6/17/21 of the POCSO Act, 2012 along with Section 75/80 of the Juvenile Justice Act, 2015. The Police conducted the investigation and thereafter, submitted Charge-sheet vide Charge-sheet No. 140 of 2023 in connection with the earlier case, i.e., Paltan Bazar P.S Case No. 193 of 2023 against the petitioner and also 4 other persons under different provisions of law. In pursuance thereof, another charge sheet being Charge Sheet No. 51 of 2023 was filed in connection with the later case, i.e., Paltan Bazar P.S Case No. 201 of 2023 against the petitioner and 4 other persons under different provisions of law. Both the Charge-sheet were clubed together and presently one trial has been conducted, i.e., the Sessions (Spl.) Case No. 112 of 2023. Charges were framed against the petitioner under Section 466/471/370 (5) IPC read with Section 75/80/81 of the Juvenile Justice Act, read with Section 6 of the POCSO Act. It is further stated that 68 Nos. of prosecution witnesses were arrayed in the Charge-sheet and out of the same, 13 prosecution witnesses were examined till date. 5. The petitioner had preferred bail application before the Spl. Judge POCSO, Kamrup, Guwahati and by Order dated 20.05.2025, the learned Court had rejected the bail application mainly on the ground that there has been no delay in the trial and that the trial was conducted without any adjournments. 6. Mr. Z. Kamar, learned Senior Counsel for the petitioner raises 2 Page No.# 4/13 grounds for enlarging the petitioner on bail and the said 2 grounds are:- 1. The grounds of arrest as required under Section 50 Cr.PC/Section 47 as well as Section 48 of the BNSS, 2023 were not served upon the petitioner at the time of his arrest. 2. The petitioner was arrested on 06.05.2023 and that it is almost 2½ years that the petitioner has been inside the jail and that on this long incarceration inside the jail, the learned Senior Counsel has prayed for bail, along with the first ground. 7. Apart from the aforesaid two grounds, the learned Senior Counsel also raises another ground that amongst the 7 offences that has been charged against the petitioner, in 4 of the offences, the petitioner had already served half of the sentence as mandated under the said offences and the said offences are Section 471 of the IPC, where the maximum punishment is 3 years with fine, Section 75 of the Juvenile Justice Act, where the punishment is 3 years or with fine or with both, Section 80 of the Juvenile Justice Act, where the maximum punishment is 3 years or with fine or with both and lastly, Section 81 of the Juvenile Justice Act, where the maximum punishment is 5 years and fine. However, it be stated here that under Section 81 of the Juvenile Justice Act, the petitioner is yet to serve half of the sentence prescribed for the said offence, i.e., he is 8 days short of the same. As far as the other offences are concerned, i.e., Section 466 of the IPC, the maximum punishment is 7 years and fine, Section 370 (5) of the IPC, the maximum punishment is not less than 14 years and which may extend to imprisonment for life and under Section 6 of the POCSO Act, the maximum punishment is not less than 20 years, which may Page No.# 5/13 extended to life as well as death. The petitioner is also charged under the said offences. 8. The learned Senior Counsel has placed the notice under Section 50 Cr.PC that was served upon the petitioner which shows that the petitioner was only appraised of the Case No. along with the provisions of law under which he is arrested and further he was informed that sufficient evidence is found against him and that he was forwarded to Hon’ble Court for judicial custody. He has also placed the arrest memo served upon the petitioner, wherein only the Case No. along with provisions of law under which he was arrested, the date and time of the arrest and the place of arrest were intimated. He has also placed the notice under Section 50(A) given to the guardian of the petitioner where too the Case No. along with the provisions under which he was arrested and that he will be forwarded to the Hon’ble Court within 24 hours as well as the date of arrest were intimated to the said relatives. He placed Section 50 of the Cr.PC, wherein it is mandated that the police officer or other persons arresting any person without warrant shall forthwith communicate the accused, the full particulars of the offence for which he is arrested or other grounds for such arrest. He has also placed Sub Section 2, wherein it is provided that the arrested person should be informed that he is entitled to be released on bail and that he may arrange surety on his behalf. 9. The learned Senior Counsel has placed Section 50A, where it is provided that similarly the relatives or friends of the accused person must be informed forthwith about the arrest made and that the police officer shall also informed the arrested person his rights under Sub - Section (1) Page No.# 6/13 as soon as he is brought to the Police Station. He as such submits that neither any full particulars of the offence for which the petitioner was arrested was given to him nor any other grounds of arrest nor he was informed that he has a right to be released on bail. As such, he submits that there is a clear violation of Section 50 of the Cr.PC and on that point, the arrest of the petitioner is vitiated and he is entitled to be released on bail. 10. The learned Senior Counsel has also submitted that there is long incarceration of the petitioner and that there is a delay in trial, inasmuch as, the F.I.R was lodged on 05.05.2023 and that the Investigating Officer submitted Charge-sheet on 03.07.2023 and thereafter, charges were framed on 24.06.2024 and that out of 68 listed prosecution witnesses, only 13 were examined including the informant, the minor victim and other witnesses. He as such state that the petitioner has been staying for almost long 2 ½ years behind the bars and he is entitled for bail as his rights under Article 21 of the Constitution of India is violated. 11. The learned Senior Counsel also places reliance on the statement made by the main victim girl, i.e., PW-2 who had not implicated the petitioner in the offences alleged against him. He had also placed reliance on the deposition of PW – 3, the victim boy who stated that the petitioner used to scold him only for his naughtiness. He submitted that although PW – 3 in his statement had said that the petitioner used to kick him when he is asleep but his knowledge during his sleep his doubtful. 12. On these grounds, the learned Senior Counsel has prayed for bail for the petitioner. To substantiate his arguments, he has placed reliance on the Page No.# 7/13 Judgments as mentioned herein below:- On non – furnishing of grounds of arrest the learned Senior Counsel has relied on the following four Judgments:- 1. Vihaan Kumar Vs. State of Haryanaand Anr.reported in 2025 INSC 162. 2. Prabir Purkayastha Vs. State of NCT Delhi reported in 2024 8 SCC 254. 3. Ahmed Mansoon & Ors Vs. The State REP BY, Assistant Commissioner of Police & Anr. The judgment delivered by the Hon’ble Supreme Court in Criminal Appeal 198 of 2025. 4. Chaidul Hoque Vs. The State of Assam, delivered by the Hon’ble Gauhati High Court. On the point of long incarceration of the petitioner inside the jail, the learned Senior Counsel has relied on the following Judgments:- 1. Khurshid Ahamad Vs. State of Bihar. 2. Kalpesh GulabBhai Khojaju Vs. State of Gujarat. 3. Jairam Vs. The State of Rajasthan. 4. Shariful Islam alias Sharif Vs. The State of West Bengal. The learned Senior Counsel has relied on many other decisions, wherein the accused person was inside the jail for more than a year and the Hon’ble Court had allowed the accused person to go on bail on such long Page No.# 8/13 incarceration. 13. Per contra, Mr. P.S. Lahkar, learned Addl. PP for the State of Assam, submits that the two main grounds raised by the learned Senior Counsel to the effect that the petitioner has been inside the jail for a long period of time, he submits that the same cannot be a ground for bail, inasmuch as, he placed the Judgment delivered by Hon’ble Supreme Court in State of Karnataka Vs. Sri Darshan Etc., reported in 2025 SCC Online SC 1702, wherein it was observed that long incarceration of the accused person and a long list of witnesses which will take considerable period of time are not grounds for bail particularly when the offences are heinous. 14. He further submits that the ground of non – furnishing of grounds of arrest is again not attracted in the instant case, inasmuch as, the petitioner was arrested on 06.05.2023,i.e., before the delivery of the Judgment in the case of Pankaj Bansal Vs. Union of India and Ors., delivered by the Hon’ble Supreme Court, wherein it was observed that from the date of the Judgment, by using the word ‘henceforth’, written grounds of arrest were directed to be given to the accused person and since the present case is before the delivery of the said Judgment, the mandatory requirement of serving grounds of arrest as ordered by the Hon’ble Supreme Court are not required. He further submits that under Section 50 Cr.PC, it is provided that other grounds of arrest must be provided to the accused person and that in pursuance thereof, notice under Section 50 has been given to the petitioner in compliance of the same. 15. He also submits that the requirement under Section 50 Cr.PC that the details of the offences should be furnished to the accused persons, the Page No.# 9/13 same had been complied with while giving him the notice under Section 50 of CPC. He also submits that on the day of the arrest of the petitioner, the counsel appearing for the petitioner presented himself and as such, no prejudice was caused to the petitioner as well as his legal rights were known to the petitioner. 16. Mr. P.S. Lahkar, learned Addl. PP also submits on the basis of the statement of the victim that the petitioner along with others had tortured the victim which entails the provisions of POCSO Act, as well as the other provisions of law. He further submits that on the same grounds, this Court had rejected the bail application in connection with other accused person charged with other offences. He also submits that apart from the witnesses who were already examined, there were more important witnesses such as the doctors who are yet to be examined and that there is every possibility that after the petitioner is released on bail, he might influence the doctors who are from his own fraternity. 17. Mr. U. Choudury, learned counsel appearing for respondent No. 2 submits that witnesses such as the doctors are yet to be examined by the Prosecution and as such, unless the doctors are examined and discharged, the petitioner may not be released from the jail as the same would have the effect of influencing the doctors before they are examined and he has adopted the submissions made by the learned Addl. PP in respect of the other submissions. He further submits that the trial was going on and the petitioner is well aware of the charges against him and the way it is being proved during the trial. 18. I have heard the learned counsels and have gone through the Page No.# 10/13 records. 19. The two main submissions made by the learned Senior Counsel Mr. Z. Kamar, that the petitioner had stayed for a long period of time inside the jail and that no grounds of arrest has been furnished to the petitioner as required under Section 50 of CR.PC, this Court records the following findings. 20. It is noticed that the petitioner was arrested on 06.05.2023 in connection with Paltan Bazar P.S Case No. 193 of 2023 and since then, he is inside the jail and that as of today, he is inside the jail for 2 years 5 months 22 days. It is also seen that the petitioner had made one application for bail and the said application was rejected vide Order dated 20.05.2025. It is also noticed that 68 numbers of witnesses are arrayed in the charge sheet and out of the same, 13 have been examined till date and amongst them, the informant, the two minor victim and other witnesses have been examined and there are so many witnesses who are yet to be examined. The only apprehension as stated by the learned counsel for the State as well as the informant is that if the petitioner is released on bail, he will influence the other witnesses who are yet to be examined, more particularly the doctors.However, the same cannot be a ground for refusal of bail, inasmuch as, the injury report as well as the report prepared by the doctors are already on record and that any influence made by the petitioner on other witnesses may well be taken care of at a later stage either by filing cancellation of bail or by any other process of law. It is statutory provision of law that prolonged incarceration generally militates against the most precious Fundamental Rights under Article 21 of the Page No.# 11/13 Constitution of India.In such situation, liberty must override any embargo put by act or facts and circumstances of any case. In the instant case, another almost 50 witnesses are yet to be examined and that would take a considerable period of time and keeping the petitioner inside the jail for the entire period would be violation of the Article 21 of the Constitution of India. 21. As far as the other ground is concerned that is non – furnishing of grounds of arrest to the petitioner, this Court finds that under Section 50 of the Cr.PC, it is mandated that on arrest being made the arrestee must be communicated forthwith the full particulars of the offences for which he is arrested and he should be informed of his rights of his entitlement to be released on bail. In the case at hand, it is seen in the notice issued under Section 50 Cr.PC that the petitioner was only apprised of the Case No. along with the provisions of law for violation of which he was arrested and that he was forwarded to the Hon’ble Court for judicial custody. The full particulars of the offences for which he is arrested or other grounds for such arrest were not furnished to the petitioner as could be seen from the notice given to him. He is not apprised of his rights to be released on bail or that he may arrange for surety on his behalf as required under Section 50(2) of the CR.PC. 22. The contention made by the learned Senior Counsel appearing for the State and the private respondent that in the case of Pankaj Bansal Vs. Union of India and Ors. reported in 2024 7 SCC Online 576, the requirement of furnishing grounds of arrest comes only after the said Judgment was delivered as in the said Judgment the directions were to be Page No.# 12/13 complied ‘henceforth’. However, in the considered opinion of this Court, the same argument has no basis whatsoever, in view of the Section 50 Cr.PC being present in the statute book which clearly provides that upon arrest being made the arrestee should be provided with the full particulars of the offence for which he was arrested and should also be informed that he has a right to go on bail. It is stated here that the Hon’ble Supreme Court had elaborated on the subject by the various decisions delivered but the fact remains that requirement is writ large in the statute book. As such, it cannot be said that grounds of arrest may not be given to the petitioner.It is as such seen that Section 50 of the Cr.PC has been violated in the instant case, which results in vitiating the arrest of the petitioner as has been held by the Hon’ble Supreme Court, that once the arrest is vitiated, the arrestee must be immediately released on bail without any delay. 23. As far as the statement of the victim is concerned, it is seen that although the main victim i.e., Pw – 2 had stated that the petitioner had sexually assaulted her but later she denied the same and said that she was told to say so. Further, the statement of PW – 3 shows that although he stated the petitioner used to kick him while he was asleep but it is not known as to how he came to know during his sleep. However, the observations made in this Order will have no effect on the trial of the case. 24. In view of the discussions made here in above, this Court finds it fit that the petitioner be released on bail on furnishing of a bail bond of Rs. 50,000/- with 2 local sureties of the like amount to the satisfaction of the Trial Court under the following conditions:- 1. The petitioner will appear before the trial Court as and when Page No.# 13/13 called for, on every dates. 2. The petitioner shall not influence the witnesses connected with the case and if it is found that he had tried to influence any of the witnesses, the Court will take action. 3. The passport of the petitioner may be deposited with the trial Court if it is not deposited till now. 4. The petitioner will not go near the victims at any point of time. 25. Petition is disposed of. JUDGE Comparing Assistant