Page No.# 1/5 GAHC010260532025 2026:GAU-AS:3457 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3780/2025 NIRON NEOG @ NIRAN KUMAR NEOG SON OF BOGIRAM NEOG RESIDENT OF VILL- 2 NO. SONAPUR,P.S. LALUK, DIST. LAKHIMPUR, ASSAM VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:GUNARAM THENGAL S/O MALIRAM THENGAL RESIDENT OF VILL- SONAPUR P.S. LALUK DIST. LAKHIMPUR ASSAM PIN-78416 Advocate for the Petitioner : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K DAS Advocate for the Respondent : PP, ASSAM, MS. S NEWAR, AMICUS CURIAE (R2) Page No.# 2/5 BEFORE HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 09.03.2026 Heard Mr. B.K. Mahajan, learned Senior counsel for the petitioner, Mr. M.P. Goswami, learned Additional Public Prosecutor for the State and Ms. S. Newar, learned Amicus Curiae for the respondent No. 2. 2. By this application, the petitioner has prayed for bail in connection with Spl. (P) Case No. 161/2025 pending in the Court of learned Additional Special Judge-cum-Special Judge, POCSO, Lakhimpur. 3. The case started with lodging of the ejahar before the Laluk Police Station which was registered as Laluk Police Station Case No. 152/2025 under Sections 64(2)(f)/64(2)(m)/65(1) of the Bharatiya Nyaya Sanhita, 2023 read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 as well as Section 75 of Juvenile Justice (Care and Protection of Children) Act, 2000. 4. The FIR dated 06.08.2025 reveals that the niece of the informant, who was taking tuition from the accused person was subjected to sexual harassment by the said person for which the victim got pregnant by six months. 5. The police on completion of investigation submitted charge sheet against the petitioner on 26.08.2025. Thereafter, cognizance was taken on for offences mentioned above against the petitioner by the Trial Court. 6. Mr. Mahajan raises one law point to the effect that in the present case Section 36(b)(i) of the BNSS, 2023, which provides that the police personnel Page No.# 3/5 while preparing memorandum of arrest shall get attested by at least one witness, who is the member of the family of the person arrested or a respectable member of the locality where the arrest is made. 7. In the instant case, it is seen that the said provision has not been followed and the memorandum of arrest neither reflects that the signature of at least one witness, who is a member of the family of the person arrested or a respectable member of the locality was taken and on that ground, the learned counsel for the petitioner prays for bail of the petitioner. 8. To substantiate his argument, the learned counsel has placed various judgments to that effect that violation of Section 36(b)(i) of the BNSS, 2023 would entitle the accused person to be released on bail. 9. Mr. M.P. Goswami, learned counsel for the State on perusal of the Trial Court Records has submitted that although there are violation of Section 36(b) (i) of the BNSS, 2023, but as far as the merit of the case is concerned, the same being grievous in nature, cannot result in enlarging the petitioner on bail specially due to the fact that the statement of the victim before the Magistrate corroborates the offence. 10. Ms. S. Newar, learned Amicus Curiae for the informant submits that the law point urged by the counsel appearing for the petitioner was not present in the pleading of the case and that being an afterthought cannot be entertained at this stage. She also submits that the case is at a very nascent stage and without the victim being examined and her statement being put forth, it will not be proper to enlarge the petitioner on bail. She further submits that the victim is Page No.# 4/5 stated to have got pregnant by six months and if she delivers a baby, the further evidence is yet to be taken. 11. On consideration of the submissions made at the bar and due to the statutory provision given under Section 36 of the BNSS, 2023, this Court holds that the memorandum of arrest should be attested by at least one witness who can be the member of the family of the arrested person or a respectable member of the locality, however, the same has not been done in the instant case. Further since it is provided in the BNSS, 2023 that arrest has to be made in accordance with the provisions of the Code, the violation of Section 36 of the Code, entails the arrest invalid. 12. Violation of the said provision of the BNSS, 2023, results in violating the arrest. It would also result in violation of the Article 21 of the Constitution of India. 13. However, the argument that the said law point does not find place in the pleadings of the case, this Court holds that as far as the law point is concerned, the Court is duty bound to take into consideration while passing the orders even in absence of pleadings. As such, this Court finds it fit that the petitioner be released on bail on furnishing a bail bond of Rs.30,000/- (Rupees Thirty Thousand) with two local sureties of like amount to the satisfaction of the Special Judge, Lakhimpur under the conditions that :- (i) the petitioner will appear before the Trial Court as and when required. (ii) the petitioner will not tamper with the evidence and influence the witnesses connected with this case. Page No.# 5/5 (iii) the petitioner shall go near vicinity of the victim at any point of time. 14. Petition is disposed of. JUDGE Comparing Assistant