Page No.# 1/9 GAHC040013432025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : BA/100/2025 Dindayal Thakur Son of Shri Kedar Thakur, resident of E-02, Doimukh, Chuku Building, Main market, B Sector, Doimukh, PO and PS Doimukh, Papum Pare District, Arunachal Pradesh. VERSUS The State of AP and 3 Ors represented by the PP of AP 2:Miss Kiyir Riba Age: 0 Occupation : Daughter of Shri Kimar Diyum resident of Chandranagar near Geology and Mining Office Papum Pare District Arunachal Pradesh Itanagar. 3:Miss X Age: 0 Occupation : Daughter of Kimar Diyum resident of Chandranagar near Geology and Mining Office Papum Pare District Arunachal Pradesh Itanagar. (Victim A) 4:Miss Y Age: 0 Occupation : Daughter of Kebom Bogo resident of Chandranagar Page No.# 2/9 near Geology and Mining Office Papum Pare District Arunachal Pradesh Itanagar Advocate for the Petitioner : M K Singh, Joram Sanjay,Khyoda Moses Advocate for the Respondent : P P of AP, Legal Aid Counsel,Hinti Jeram BEFORE HONOURABLE MR. JUSTICE KARDAK ETE ORDER Date : 24-10-2025 Heard Mr. M. K. Singh, learned counsel for the applicant. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State and Ms. H. Jeram, learned Legal Aid Counsel for the informant/victims. 2. This is an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, praying for grant of bail to the accused persons, namely, Shri Guddu Kumar and Shri Amit Kumar Thakur, in connection with the Itanagar Women P.S. Case No. 03/2024, under Sections 363/366-A/376DA of the IPC, read with Section 6 of the POCSO Act, 2013, corresponding to POCSO Case No. 04/2024. 3. The case set up by the prosecution is that on 20.01.2024, a written FIR was received from one Smti. Kiyir Diyum Riba of Chandranagar near Geology & Mining Office, Itanagar, Arunachal Pradesh stating that her cousin, namely, Ms. A, aged about 14 years has been found missing since 18th & 19th January, 2024. It also states that another girl, namely, Ms. B, aged 12 years, has also gone missing from their rental house on the same day. Accordingly, initially a case Page No.# 3/9 was registered under Section 363 of the IPC, 1860. 4. The Investigating Officer has recovered both the missing girls from the saloon/parlour of the co-accused Shri Manish Kumar Thakur from Guwahati on 21.01.2024. Both the girls were examined during which it was learnt that both have been subjected to gang rape by four accused persons. On disclosure of the said offence, they were taken to TRIHMS Hospital, Naharlagun for medical examination and later on both the girls were handed over to their parents. 5. Upon disclosure of allegation of commission of gang rape, a requisition was made to the Special Judge (POCSO), Yupia on 23.01.2024, for insertion of Section 366-A/376DA of the IPC and Section 6 of the POCSO Act, 2013, in addition to Section 363 of the IPC, which was registered initially. Accordingly, a case was registered being Itanagar Women P.S. Case No.03/2024, under Section 363/366-A/376DA of the IPC, read with Section 6 of the POCSO Act, 2013. 6. Altogether 5 (five) accused persons have been arrested on 24.01.2024 and 25.01.2024 including the accused(s) Shri Guddu Kumar and Shri Amit Kumar Thakur. Upon conclusion of the investigation, a Charge-sheet was submitted under Sections 363/366-A/376(3)/376DA/354/120 of the IPC, read with Sections 4(2)/6(1)/12 of the POCSO Act, 2013, against four accused persons including the present accused persons and under Section 120 B of the IPC, against one Simanta Hazarika. 7. The case has been registered in the Court of Special Judge (POCSO), being POCSO Case No.04/2024, which is pending trial. 8. The prosecution has examined 10 (ten) witnesses so far, out of total 16 (sixteen) witnesses, which began in the month of December, 2024. The present bail application is being filed by one Shri Dindyal Thakur, who is the uncle of the Page No.# 4/9 accused No. 1, Shri Guddu Kumar and father of the accused No. 2, Shri Amit Kumar Thakur. 9. It is contended by the applicant that the accused Shri Guddu Kumar and Shri Amit Kumar Thakur, were arrested on 24.01.2024 and since then, they are languishing in the judicial custody at the District Jail, Jully, Itanagar, for nearly 21 (Twenty-One) months and the trial has already commenced and the evidence of both the victims as well as the complainant has been recorded and discharged. Therefore, the possibility of hampering or tampering with the case or influence over the witnesses may be ruled out on the part of the alleged accused persons. So far, 10 (ten) out of 16 (sixteen) prosecution witnesses have been examined within a period of ten months and the accused having been cooperating since the inception of the case, the further detention and custody of the accused persons is not necessary. Both the victims and the complainants, who are the important witnesses, have already been examined. Therefore, there is no chance of affecting the trial as well as the evidence. 10. Mr. Singh, learned counsel for the applicant, submits that at the time of making arrest of the accused, the Investigating Officer has violated the constitutional provisions as mandated under Article 21 & 22 of the Constitution of India, by not mentioning the grounds of arrest while issuing the arrest memo and Notice under Section 50 Cr.P.C./Section 47 of BNSS. As all the full particulars of the offence, which is alleged to have been committed by the accused should be informed to him at the time of his arrest and otherwise it would be against the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself. 11. Mr. Singh, learned counsel submits that non-communication of the grounds of arrest is in violation of Section 50(1) of Cr.P.C., corresponding to Section Page No.# 5/9 47(1) of BNSS' 2023, rendering the arrest and subsequent remand of the accused invalid. The accused has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest have to be furnished to the arrested person as a matter of course and without any explanation. Non-supply of written grounds of arrest to the arrested accused would vitiate the arrest even if the case has been charge-sheeted. 12. Mr. Singh, learned counsel further submits that the period of incarceration undergone by the accused may not be a good ground for considering his bail application at this stage as the Charge-sheet has been filed and case is on trial. However, considering the fact that the grounds of arrest were not communicated to the accused or mentioned in the arrest memo as well as the notice issued to the present accused under Section 50 Cr.P.C., this will mandate to extend the privilege of bail to the accused. He submits that the Hon'ble Apex Court clearly elaborated the differences between "grounds of arrest" and "reasons for arrest" of any accused, wherein, the reasons of arrest may be same for every accused, but the grounds of arrest must be of personal character. 13. In support of his submissions, Mr. Singh, learned counsel has placed reliance on the judgment of Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC Online SC 269. 14. Mr. T. Ete, learned Additional Public Prosecutor, Arunachal Pradesh and Ms. H. Jeram, learned Legal Aid Counsel for the informant/victims, while referring to the deposition of the victims, have submitted that the evidence as of now clearly indicates the commission of offence of such a serious nature, involving five accused persons. The statement/depositions of the victims are clear and consistent that the present accused persons committed rape along with other co-accused with the victim girls and the trial having commenced, the accused Page No.# 6/9 person is not entitled to be released on bail. It is submitted that since the accused is not a permanent resident of the State and is originally from outside the State, there is a likelihood of fleeing from justice, if the accused is released on bail. 15. Mr. T. Ete, learned Additional Public Prosecutor further submits that although ground of arrest needs to be communicated to the accused, in the present case, 10 (ten) witnesses have been examined out of 16 (sixteen) witnesses and trial is on its right track. At this stage, the accused persons are in full knowledge of the ground of arrest as well as reasons for arrest as the accused have participated in the trial. He submits that in the case of State of Karnataka vs. Shri Darshan ETC., reported in 2025 SCC Online SC 1702, the case of Vihaan Kumar (Supra) has been clarified, wherein, the Hon’ble Supreme Court has observed that delay in furnishing the grounds of arrest by itself many not constitute a valid ground for grant of bail and that Article 22 (1) of the Constitution of India is satisfied if the accused is made aware of the ground of arrest in substance, even if not conveyed in writing. 16. I have considered the submissions advanced by the learned counsels for the parties and also perused the scanned copy of the Trial Court Records. 17. This Court in BA No. 02/(AP)2025, arising out of the same case, rejected the bail application of the co-accused, namely, Manchal Kumar Yadav, on similar facts and law vide order dated 20.08.2025. 18. The present accused persons namely, Shri Guddu Kumar and Shri Amit Kumar Thakur were arrested on 24.01.2024 along with two other co-accused(s) and two more accused(s) were arrested on 24.01.2025 & 25.01.2025. The victims have been recovered by the Police from Guwahati on 21.01.2024, from Page No.# 7/9 the saloon of a co-accused. On examination, it has been disclosed that the minor victims were subjected to gang rape by four accused persons. Initially the case was registered under Section 363 of the IPC. Thereafter, on recovery of the victim and having found that they were subjected to gang rape by the four accused persons, the present case has been registered under Sections 363/366- A/376DA of the IPC, read with Section 6 of the POCSO Act, 2013. 19. On perusal of the deposition of the victims, prima facie, establish the commission of the alleged offence by the accused persons, including the present accused. The trial has already begun and so far, 10 (ten) prosecution witnesses including the victims and the informants have been examined by now and other 6 (six) more prosecution witnesses are to be examined. 20. The Hon’ble Supreme Court, in the case of Shri Darshan (supra) has held as under: “...20.1. Delay in furnishing the grounds of arrest cannot, by itself, constitute a valid ground for grant of bail. 20.1.1. The learned counsel for the respondents accused contended that the arrest was illegal as the grounds of arrest were not furnished immediately in writing, thereby violating Article 22 (1) of the Constitution and Section 50 Cr.P.C (now Section 47 of the Bharatiya Nagarik Suraksha Sanhita). This submission, however, is devoid of merit. 20.1.2. Article 22(1) of the Constitution mandates that "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice". Similarly, Section 50 (1) Cr.P.C. requires that "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. 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 Page No.# 8/9 every case. Judicial precedents have clarified that substantial compliance with these requirements is sufficient, unless demonstrable prejudice is shown. 20.1.4. In Vihaan Kumar v. State of Haryana22, it 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. 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.” 21. The Hon’ble Supreme Court in the case of X vs. State of Rajasthan and Anr., reported in 2024 SCC OnLine SC 3539 has held that ordinarily in serious offences like rape, murder, dacoity. etc., once the trial commences and the prosecution starts examining it’s witnesses, the Court should loath in entertaining the bail application of the accused. It has also observed that over a period of time, two things are noticed, i.e. (i) either the bail is granted after charge is framed and just before the victim is to be examined by the prosecution before the trial or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. 22. Having noticed above, the Hon’ble Supreme Court has held that the aforesaid is not a correct practice that the Court should adopt. Once the trial commences, it should be allowed to reach to its final conclusion, which may either results in conviction of the accused or acquittal of the accused. The moment the High Court exercise its jurisdiction in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial, when it comes to appreciating the oral evidence of the victim. It is only in the event, if the trial Page No.# 9/9 gets unduly delayed and that too, for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that the right of the accused to have a speedy trial has been infringed. 23. In the case at hand, although there are 16 (sixteen) prosecution witnesses, 10 (ten) prosecution witnesses have already been examined so far and therefore, the trial appears to be on its right pace and as such, cannot be said that the trial would be unduly delayed. Coupled with the above, the offence alleged is a serious offence like gang rape and under the POCSO Act and the deposition of the victims appears to be clear and consistent that the accused persons including the present accused had subjected the victim girls to rape. 24. As held by the Hon’ble Supreme Court in the case of X vs. State of Rajasthan (supra), once the trial commences, it should be allowed to reach to its final conclusion, which may either result in conviction of the accused or acquittal of the accused and in a serious offence like rape, once the trial commences and the prosecution starts examining its witnesses, ordinarily the application for bail should not be entertained. 25. Having considered above, this Court is not inclined to admit the accused persons, namely, Shri Guddu Kumar and Shri Amit Kumar Thakur to bail. Accordingly, the bail application stands rejected and disposed of. However, rejection of this bail application shall not be a bar to approach the Special Judge (POCSO) for bail on the ground other than the above. JUDGE Comparing Assistant