Page No.# 1/8 GAHC010049232025 2025:GAU-AS:4374 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./705/2025 SOYAD ABDUL ROUF @ RUFUL S/O LATE SOYAD ABDUL SUFAN, R/O VILLAGE BUNDASHIL, P.O. BADARPUR, PS. BADARPUR, DISTRICT KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:AKHTAR AHMED S/O LATE MOYAB ALI VILL-BUNDASHIL P.S. BADARPUR DIST. KARIMGANJ ASSAM PIN-78880 Advocate for the Petitioner : MR H R CHOUDHURY, K MAINUDDIN Advocate for the Respondent : PP, ASSAM, Page No.# 2/8 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 08.04.2025 Heard Mr. H. R. Choudhury, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent. 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special Sessions (POCSO) Case No. 264/2023, arising out of Badarpur P.S. Case No. 329/2023, under Section 354 of IPC read with Section 8 of POCSO Act, pending before the Court of learned Sessions Judge, Karimganj. 3. From the record, it is seen that the steps for service of notice upon respondent No. 2 has already been taken, but till date the service report has not been received. 4. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the present accused/petitioner is innocent and he has been falsely implicated in this case. However, the present accused/petitioner was arrested on 04.12.2023 and since then, he is in custody. Further he submitted that the earlier bail application of the present petitioner, being Bail Appln. No. 2871/2024, was rejected by this Court with an observation that the petitioner may approach this court again after recording of evidences of informant and the victim. Hence, the present bail application has been preferred as subsequently evidences of both Page No.# 3/8 the victim as well as the informant have already been examined in this case. He further submitted that the present petitioner is a permanent resident of his addressed locality and he ready and willing to appear before the Trial Court on each and every date fixed and shall contest the trial. 5. Mr. Choudhury, by filing an additional affidavit, further submitted that the grounds of arrest were not communicated to the present petitioner in the Arrest Memo, Inspection Memo as well as in the Notice under Section 50 Cr.P.C., which is mandatorily required and non-compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. He further submitted that the accused/petitioner was arrested on 04.12.2023 and was remanded for judicial custody on 05.12.2023, but due to non-mentioning of grounds of arrest in the Arrest Memo, Inspection Memo as well as in the Notice under Section 50 Cr.P.C., the arrest and the remand itself is illegal. He accordingly submitted that 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. 6. In this context also, Mr. Choudhury, learned counsel for the petitioner, cited the following decisions: (i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269. (ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in Page No.# 4/8 (2024) 8 SCC 254. 7. Mr. Sharma, learned Additional Public Prosecutor, submitted in this regard that there are sufficient incriminating materials against the present accused/petitioner and considering the nature of offence, the bail prayer of the petitioner may not be considered at this stage. Further he submitted that there may not be any written communication for grounds of arrest in the Arrest Memo, Inspection Memo or in the Notice, but from the materials available in the case record, it is very much evident that the petitioner was well aware about the allegation brought against him and in the Forwarding Report, the same has already been mentioned and hence, he raised objection in granting bail to the accused/petitioner. 8. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the annexures filed along with the petition, more particularly, the Arrest Memo, Inspection Memo and the Notice issued to the present accused/ petitioner under Section 50 Cr.P.C. It is accordingly seen that while issuing the same, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the Arrest Memo, Inspection Memo as well as in the Notice. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police. Page No.# 5/8 9. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 50 Cr.P.C. rendering the arrest and subsequent remand of the accused/petitioner invalid. The accused/petitioner 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/ petitioner would vitiate the arrest even if the case has been charge-sheeted. 10. The Hon’ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioner, has held in paragraph Nos. 19, 21 & 48 of the judgment as under: “19. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India. 21. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality 3 (2000) 8 SCC 590committed at the time of arresting the accused and the grant of initial police custody remand to the accused. Page No.# 6/8 48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase ‘reasons for arrest’ and ‘grounds of arrest’. The ‘reasons for arrest’ as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the ‘grounds of arrest’ would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the ‘grounds of arrest’ would invariably be personal to the accused and cannot be equated with the ‘reasons of arrest’ which are general in nature.” 11. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court has held has under: “14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second.” Page No.# 7/8 12. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo, Inspection Memo as well as in the Notice issued to the present accused/petitioner under Section 50 Cr.P.C. and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 50 Cr.P.C., it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India and thus the arrest of the petitioner is vitiated and it may be a sufficient ground to consider his bail application. 13. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application as the case has already been charge-sheet finding prima facie materials against the accused/petitioner and the victim has also directly implicated the accused/petitioner in her evidence adduced before the Court. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Arrest Memo, Inspection Memo as well as in the Notice issued to the present accused/petitioner under Section 50 Cr.P.C., this Court find it a fit case to extend the privilege of bail to the accused/petitioner. 14. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, Sribhumi, the accused/petitioner, namely, Soyad Abdul Rouf @ Ruful, be enlarged on bail, subject to the following conditions: Page No.# 8/8 (i) that the petitioner shall appear before the Court of learned Special Judge, Sribhumi, on each and every date to be fixed by the Court; (ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) that the petitioner shall submit his Aadhar Card and PAN Card before the learned Special Judge, Sribhumi; and (iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Sribhumi, without prior permission. 15. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant