Page No.# 1/5 GAHC010221652025 2025:GAU-AS:14968 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3230/2025 SAHJAHAN ALI @ MD. SHAJAHAN ALI S/O - ABDUL KARIM, R/O- CHAPORIGAON, WARD NO. 12, P.O AND PS- NORTH LAKHIMPUR, DIST- LAKHIMPUR, ASSAM VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:RANJAN NEWAR S/O- LATE KERMAN NEWAR R/O- NO. 2 ORANGBASTI PO- BEJOO TE P.S -NORTH LAKHIMPUR DIST- LAKHIMPUR ASSAM PIN- 78703 Advocate for the Petitioner : MR. S Y AHMED, MR. N H BARBHUIYA Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, (AMICUS CURIAE, R2) Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 06.11.2025 Heard Mr. S. Y. Ahmed, learned counsel appearing on behalf of the accused- applicant. Also heard Mr. P. S. Lahkar, learned Addl. Public Prosecutor, representing the State respondent. 2. This is an application filed under Section 483 of the BNSS, 2023, praying for granting bail to the accused-applicant in connection with Special POCSO Case No. 97/2025, pending in the Court of learned Special Judge (POCSO), Lakhimpur, North- Lakhimpur, arising out of North-Lakhimpur P.S. Case No. 98/2025, under Section 64 BNS, read with Section 6 of POCSO Act. 3. The gist of the case as has been alleged in the FIR dated 17.03.2025, lodged by one Ranjan Mewar before the Silonibari Police Out-post that at 9:00 PM, on 16.03.2025, the accused-applicant on the plea of having love affection with his younger sister, had physical relationship with the victim girl without her consent. 4. On the basis of the FIR, North-Lakhimpur P.S. Case No. 98/2025, under Section 64 BNS, read with Section 6 of POCSO Act was registered against the accused-applicant and the accused-applicant was arrested on 17.03.2025 and since then, he is behind the bar. 5. Mr. S. Y. Ahmed, learned counsel for the accused-applicant submits that the Police authorities had prepared the arrest-memo in complete violation of Section 36 of the BNSS, without attestation of any witnesses and without the same being counter signed by the arrested person. Therefore, he submits that a complete violation of Section 36 of the BNSS has been committed by the Police authorities which are in violation of the mandatory requirements of law as enumerated under Article 21 & 22 of the Constitution of India. He further submits that though notices under Sections 47 & 48 of BNSS were Page No.# 3/5 issued to the accused-applicant, the same did not contain the grounds of his arrest. In support of his submissions, the learned counsel appearing for the accused-applicant relied on the case of Neelabati Bahera vs. State of Orissa, reported in AIR 1993 SC 1960 and the case of D. K. Basu vs. State of West Bengal, reported in (1997) 1 SCC 416. In view of the aforesaid, he submits that since the arrest was in violation of Sections 36, 47 & 48 of the BNSS and thereby, curtailed the liberty of the accused- applicant, the accused-applicant should be allowed to go on bail on this ground alone. 6. On the other hand, Mr. P. S. Lahkar, learned Addl. P.P., on the other hand, submits that substantial compliance of Sections 36, 47 & 48 is present in the instant case and no prejudice has been caused to the accused-applicant on his arrest. The learned Addl. P.P. submits that mere lapse of procedural aspects in arrest of the accused-applicant should not be a ground for granting bail to the accused-applicant when the accused-applicant is charged with a heinous crime under the POCSO Act. To support his arguments, the learned counsel has relied on the case of State of Karnataka vs. Sri Darshan etc., reported in 2025 SCC OnLine SC 1702 and the case of Narcotics Control Bureau vs. Khashif, reported in (2024) 11 SCC 372. He submits that minor procedural lapse in compliance of Section 36 of the BNSS, 2023, by itself would neither vitiate the trial nor would entitle the accused-applicant to be released on bail. 7. This Court has heard the submissions made by the learned counsel appearing for the respective parties and has also gone through the Case Diary submitted before this Court. 8. It may be relevant at this stage to reproduce Section 36 of BNSS, which is as follows: - “36-Procedure of arrest and duties of officer making arrest. Every officer while making an arrest shall- (a) Bear an accurate, visible and clear identification of his name which will facilitate easy identification; Page No.# 4/5 (b) Prepare a memorandum of arrest which shall be- (i) Attested by at least one witness, who is a member of family of the person arrested or a respectable member of the locality where the arrest is made; (ii) Counter signed by the person arrested; and (c)Inform the person arrested, unless the memorandum is attested by a member of his family, that he has arrived to have a relative or any other person named by him to be informed of his arrest.” 9. This Court has gone through the materials available in the Case Diary and has found that the arrest-memo, under Section 36 of the BNSS, neither contains the signature of the accused-applicant nor signature of any attested witness. The notice under Section 47 though provides a sentence on ground of arrest, in view of this Court, taking into account the offence allegedly committed, the grounds do not seem to be reasonably provided in the instant case. The same is also the case as regards the notice under Section 48 of the BNSS, 2023. 10. Taking into account the settled principle of law laid down by the Apex Court in the case of 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, this Court is of the considered view that while arresting the accused- applicant, the mandates of settled law have not been complied with and therefore, it merits the accused-applicant to be released on bail with certain conditions for the ends of justice. 11. It may be relevant to mention herein that the case laws referred to by the learned Addl. P.P., are found to be not applicable to the facts of the instant case. 12. In view of the aforesaid finding, the accused-applicant namely, Sahjahan Ali @ Md. Shajahan Ali is directed to be released on bail on furnishing a bail bond of Rs. Page No.# 5/5 30,000/- (Rupees Thirty Thousand) with a surety of like nature to the satisfaction of the learned Special Judge (POCSO), Lakhimpur, North Lakhimpur, subject to the following conditions: - (1) That the accused-applicants shall appear before the Investigating officer as and when called for and fully co-operate in the investigation of the case. (2) The accused-applicants shall not hamper the investigation nor tamper with any evidence or influence any witnesses connected with the case. 13. Accordingly, the instant bail application is disposed of as allowed. Case Diary so received to be sent back. JUDGE Comparing Assistant