Page No.# 1/9 GAHC010263732024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3801/2024 SUMI BORAH D/O BHOLA BORAH R/O BANIPUR WEST BYELANE-7, DHAKERI GAON, P.O. AND P.S. DIBRUGARH, DIST. DIBRUGARH, ASSAM PIN- 786003 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. S MUNIR, MR K HUSSAIN,MS. H HAZARIKA,MR P KALITA Advocate for the Respondent : PP, ASSAM, Linked Case : Bail Appln./430/2025 BISHAL PHUKAN S/O LATE BIPIN CHANDRA PHUKAN R/O F. NO. 503 PRABHANJALEE RESIDENCY BISHNU NAGAR Page No.# 2/9 UNDER DIBRUGARH PS DISTRICT DIBRUGARH ASSAM. VERSUS THE STATE OF ASSAM REP BY THE PP ASSAM ------------ Advocate for : MR. D K BAIDYA Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 24.04.2025 1. Heard Mr. D. K. Baidya, the learned counsel for the petitioner in Bail Application No. 430/2025 and also heard Mr. A. K. Bhuyan, the learned counsel for the petitioner in Bail Application No. 3801/2024. Since both the bail applications are connected with the same case, i.e., Sessions Case No. 351/2024 pending before the Court of learned Sessions Judge, Dibrugarh corresponding to the Duliajan P.S. Case No. 198/2024 under Sections 316(5)/318(4)/61(2) of the BNS 2023 read with Sections 21(1)/21(2)/21(3)/23 of the Banning of Unregulated Deposit Schemes Act, 2019, hence, both these applications are disposed of by this common order. 2. Both the above-named petitioners, namely, Sri Bishal Phukan and Ms. Sumi Bora were shown arrested in Duliajan P.S. Case No. 198/2024 on 22.10.2024, while they were already in custody in connection with two other cases, namely, Dibrugarh P.S. Case No. 352/2024 and Barbourah P.S. Case No. Page No.# 3/9 85/2024. 3. The gist of accusation in this case is that on 21.09.2024, one Sidhartha Lalung had lodged an FIR before the Officer-in-Charge of Duliajan Police Station, inter-alia, alleging that the accused persons named in the FIR, which includes both the above-mentioned petitioners, have operated unregistered and unlawful deposit schemes and collected funds from public without any regulatory approval or legal framework and thereby they have fraudulently induced general public and misused public money and have demonstrated latent disregard to law. On receipt of the aforesaid FIR, the Duliajan P.S. Case No. 198/2024 was registered. 4. Mr. D. K. Baidya, the learned counsel for the petitioner, namely Bishal Phukan, as well as Mr. A. K. Bhuyan, learned counsel for the petitioner, namely, Sumi Bora, have made common submissions to the effect that the petitioners are detained behind the bars for the last 185 days in connection with the instant case and in the meanwhile, charge-sheet has already been laid, and charges are also framed and therefore, their further custodial detention is not necessary for the fair completion of the trial. They further submit that both the petitioners are ready to face the trial and cooperate in the trial. 5. They have also submitted that though the petitioners were already in custody in connection with the Dibrugarh P.S. Case No. 352/2024 as well as Barbourah P.S. Case No. 85/2024, however, after filing of the FIR in the instant case on 21.09.2024, they were not intimated about the lodging of the FIR and pendency of the Duliajan P.S. Case No. 198/2024 prior to the date when they were shown arrested in this case on 22.10.2024. 6. The learned counsels for the petitioners have submitted that this is against the guidelines of the Apex Court as laid down in the case of “Uday Page No.# 4/9 Chand Vs. Sheikh Mohd. Abdullah, Chief Minister, J&K And Others" reported in (1983) 2 SCC 417, as well as the observations made by this Court in the case of “Kamal Dutta Vs. Union of India” reported in 2015 1 GLT 517, wherein both the courts have deprecated the practice of withholding information about the requirement to arrest the accused in other cases while he was already in custody in some case. 7. The learned counsels for the petitioners have also submitted that in the instant case there has been a blatant violation of the constitutional as well as the statutory mandate of furnishing the grounds of arrest to the petitioners when they were shown arrested in this case (Duliajan P.S. Case No. 198/2024) 8. The learned counsels for the petitioners have submitted that an even when an accused is shown arrested while he is already detained behind the bars in connection with some other case, the rights conferred by the statute on the accused in relation to the subsequent offence are independently protected and the subsequent arrest has to be treated as a different case and to be dealt with independently. In support of their submissions, the learned counsels have cited the ruling of the Apex Court in the case of “Dhanraj Aswani Vs. Amar S. Muchandani and Another” reported in (2024) 10 SCC 336, wherein the Apex Court has observed as follows: “65.3 - While a person already in custody in connection with a particular offence apprehends arrest in a different offence, then, the subsequent offence is a separate offence for all practical purposes. This would necessarily imply that all rights conferred by the statute on the accused as well as the investigating agency in relation to the subsequent offence are independently protected. Page No.# 5/9 9. The learned counsels for the petitioners have submitted that the requirement of furnishing the grounds of arrest at the time of arresting a person in connection with a criminal case is provided under the Article 22 (1) of the Constitution of India as well as Section 50 of the Code of Criminal Procedure, 1973 and Section 47 of the BNSS. They submit that any violation in furnishing the grounds of arrest, in writing, to any such arrestee immediately after the arrest would vitiate the arrest of such an arrestee and therefore, on that ground only, such arrestee would be entitled to get bail. 10. In support of their submission, both the counsel have relied upon the rulings of the Apex Court in the “Vihan Kumar Vs. State of Haryana and Another” reported in 2025 SCC Online SC 629. They have also cited a judgement of the Co-ordinate Bench of this Court passed in the case of Mahabubul Hoque Vs. State of Assam (Bail Application No. 576/2025 on 11.03.2025). 11. The learned counsel for the petitioner No. 2 has also submitted that the said petitioner being a lady is entitled to get bail under proviso to Section 480 of the BNSS. They submit that both the petitioners are ready to cooperate in the trial, therefore, they may be allowed to go on bail. 12. On the other hand, Mr. P. Borthakur, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioners on the ground that they are involved in the offence involving huge amount of money and they are the main accused in this case and have allegedly duped innocent public of their hard-earned money. 13. The learned Additional Public Prosecutor has also submitted that since the charges have already been framed and since there are some Page No.# 6/9 witnesses, who are important for prosecution's case, namely, the informant and some other material witnesses and therefore, before examination of the said witnesses, the petitioners may not be released on bail. 14. He fairly submits that though, in this case no separate grounds of arrest were furnished to the petitioners when they were shown arrested, however, he submits that such a requirement is not necessary under the facts and circumstances of this case. 15. He submits that when the petitioners were shown arrested in Duliajan P.S. Case No. 198/2024, they were already in custody in Dibrugarh P.S. Case No. 352/2024 and were produced before the Court and also defended by their counsel in the said case. 16. He also submits that the Investigating Officer of Duliajan P.S. Case No. 198/2024 filed an application praying for showing arrest of the present petitioners in Duliajan P.S. Case No. 198/2024 on 20.10.2024 and said prayer was allowed on 22.10.2024 when the petitioners were produced before the Trial Court and were defended by their engaged counsel. 17. The learned Additional Public Prosecutor has referred to the observation made by the Apex Court in the case of Vihan Kumar Vs. State of Haryana and Another (Supra) wherein the Apex Court has observed that in a given case, even assuming that the case of the police regarding requirements of Article 22 (1) of the constitution is to be accepted based on entry in the case diary, there must be a contemporaneous record which records what the grounds of arrest were. 18. He submits that in the instant case there were grounds of arrest existing on the date when the petitioners were shown arrested in Duliajan P.S. Case No. 198/2024 and same were stated in the application filed by the Page No.# 7/9 Investigating Officer before the Trial Court, which was filed on 21.10.2024 and therefore, there was no requirement of furnishing the grounds of arrest separately to both the petitioners. 19. I have considered the submissions made by both the sides and have gone through the materials available on record. 20. It appears from the record that both the petitioners are detained in connection with the instant case for the last 185 days and the charge sheet has already been laid. It also appears that the charges have already been framed against both the petitioners and the trial has commenced and there are 22 listed prosecution witnesses who are to be examined in the trial. 21. It also appears from the record that when on 22.10.2024 the petitioners were shown arrested in Duliajan P.S. Case No. 198/2024 they were already in custody in connection with two other cases namely, Dibrugarh P.S. Case No. 352/2024 as well as Barbourah P.S. Case No. 85/2024. However, there is nothing on record to show that they were informed about the pendency of Duliajan P.S. Case No. 198/2024 during that period. Thus, it appears that there is violation of the guidelines issued by the Apex Court in the case of Uday Chand Vs. Sheikh Mohd. Abdullah, Chief Minister, J&K And Others (Supra) in this case. 22. As regards the requirement of furnishing the grounds of arrest in writing to the petitioners is concerned, it is no longer res integra that furnishing the grounds of arrest in writing to an arrestee, as soon as possible after his arrest is mandatory constitutional as well as statutory requirement and any violation of the said provisions would vitiate the arrest of such an arrestee. 23. The submissions made by the learned Additional Public Prosecutor that in a case where the petitioners were already detained behind the bars in Page No.# 8/9 connection with some other cases and were produced before the Court when the application for showing the arrest was made and on that day they were represented by their engaged counsel, there may not be any necessity of furnishing the grounds of arrest is not acceptable, in as much as the requirement of furnishing the ground of arrest to the arrestee is a constitutional mandate and any deviation from the said requirement would vitiate the arrest itself. 24. When any accused is arrested while he is already detained behind the bars in some other case, the subsequent arrest is to be treated as a separate arrest in a separate case and all procedural mandatory requirements prescribed by law are to be followed before effecting such an arrest. Even if when Court allows an application by the Investigating Officer to show and for an accused arrested in some other case, after getting the order of the Court, the arresting authority shall have to comply with all the mandatory procedural requirements including that of the furnishing of grounds of arrest, in writing, as mandated by the constitutional as well as statutory provisions. Any violation of such mandatory procedural requirement would render the arrest itself illegal. 25. In this regard, the observation of the Apex Court in the case of Vihan Kumar Vs. State of Haryana and Another (Supra) are relevant and same are quoted herein below: “20. When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) has been made. The reason is that due to non-compliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the Page No.# 9/9 arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights.” 26. In view of the discussions made herein above, this Court is of considered opinion that both the above-named accused persons are entitled to get bail in this case. 27. Accordingly, the petitioners, namely, Bishal Phukan and Sumi Bora are allowed to go on bail of Rs. 2,00,000/- (Rs. Two Lakh only) each with one surety of like amount subject to the satisfaction of the learned Session Judge, Dibrugarh with the following conditions: i. That the petitioners shall co-operate in the trial and shall appear before the Trial Court, as and when required by the Trial Court. ii. That the petitioners shall not directly or indirectly make any inducement, threat or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts of the case before the Trial Court. iii. That the petitioners shall deposit their passports before the learned Session Judge, Dibrugarh and shall not leave the territory of India without prior permission of the said Court. 28. With the above observation, both these bail applications are accordingly, disposed of. JUDGE Comparing Assistant