Page No.# 1/7 GAHC010020642026 2026:GAU-AS:4720 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./339/2026 SAMSUL ALI ALIAS SUMSUL ALI S/O AMIR HUSSAIN R/O TULSIBARI P.O. AND P.S. RANGIA DIST. KAMRUP, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:FIROZA BEGUM (INFORMANT) W/O NURJAMAL ALI R/O TULSIBARI P.OP. AND P.S. RANGIA DIST. KAMRUP ASSA Advocate for the Petitioner : MR H R A CHOUDHURY, S NAZNIN,MR. SAYED SALIM AHMED,MS R DEKA Advocate for the Respondent : PP, ASSAM, Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 31.03.2026 Heard Mr. H.R.A. Choudhury, learned Senior Counsel, assisted by Mr. S.S. Ahmed, learned counsel, appearing on behalf of the accused-applicant. Also heard Mr. P.S. Lahkar, learned Addl. Public Prosecutor, representing the State respondent as well as Mr. S. Das, learned Amicus Curiae, representing the respondent no. 2. 2. This is an application filed under Section 483 of the BNSS, 2023, praying for grant of bail to the accused-applicant in connection with Special (POCSO) Case No. 01/2026, arising out of Rangia P.S. Case No. 221/2025, under Section 65(1) of the BNS, 2023, read with Section 4 of the POCSO Act. 3. An FIR was lodged on 24.09.2025 by the informant (respondent no. 2), alleging, inter alia, that the accused-applicant, namely, Samsul Ali @ Sumsul Ali had a bike garage near the house of the informant; that on 23.09.2025, at about 4:00 PM, while the informant was sitting near the shop of her house, she saw her minor daughter going towards the garage of the aforesaid accused-applicant; that after a while, the informant asked the accused-applicant whether her daughter went to the garage, to which he denied; that the informant got suspicious and when she opened the door of the garage of the accused-applicant, she saw her daughter inside the garage; that she took her daughter home and on enquiry, her daughter stated that on 16.09.2025, taking advantage of the informant’s absence, the accused-applicant entered into her house and raped her; that the accused-applicant threatened her daughter that if she discloses the same to anybody, he would kill her; that her daughter further disclosed that prior to the incident, the accused- applicant had raped her several times. 4. On receipt of the FIR, the police registered Rangia P.S. Case No. 221/2025, under Section 65(1) of the BNS, 2023, read with Section 4 of the POCSO Act, 2012. Page No.# 3/7 5. Subsequently, the accused-applicant surrendered before the Rangia P.S. on 15.12.2025 and he was arrested on the same day and he is behind the bar since then. 6. After completion of the investigation, the investigating officer filed Charge-sheet being Charge-sheet No. 249/2025 dated 24.12.2025, under Section 61(5) of the BNSS, read with Section 4 of the POCSO Act, citing 7(seven) nos. of witnesses to prove the prosecution’s case. 7. Mr. H.R.A. Choudhury, learned Senior Counsel, appearing for the accused- applicant submits that an Anticipatory Bail application being AB No. 2701/2025 was filed by the accused-applicant, however, the same was withdrawn. 8. The learned Senior Counsel submits that while arresting the accused-applicant by the arresting authority, the mandates of Section 36 of the BNSS have not been followed and therefore, the whole arrest proceeding is vitiated and the fundamental rights guaranteed to the accused-applicant, under Articles 21 & 22(1) of the Constitution of India have been violated. 9. While citing the case of D.K. Basu Vs. State of West Bengal, reported in (1997) 1 SCC 416, he submits that while arresting a person, the arresting authority is required to prepare an arrest memo under Section 36 of the BNSS and in the arrest-memo, a signature or attestation of any of the family members of the accused person or a respected person of the locality is required to be obtained in the arrest memo. However, in the instant case, the same has not been complied with. He further submits that Section 62 of the BNSS requires that any arrest made by the police officer has to be made in compliance of the provisions of the BNSS or any other prevailing law at the time of arrest. He submits that since, the arrest has been made in violation of Section 36 of BNSS, on that ground only, the accused-applicant is liable to be released on bail. 10. Mr. P.S. Lahkar, learned Addl. P.P., on the other hand, submits that in the instant case, though no signature in the arrest memo has been obtained while arresting the Page No.# 4/7 accused-applicant, the notices under Section 47 & 48 of BNSS have been complied with at the time of arrest of the accused-applicant and therefore, there is no prejudice caused to the accused-applicant in his arrest. He further submits that the case relates to a heinous crime of rape of a minor and since, the victim is yet to the examined before the Trial Court, this is not a fit case, wherein, the accused-applicant should be granted bail. 11. Mr. S. Das, the learned Amicus Curiae, appearing for the respondent no.2, fairly submits that though the case involves a heinous crime of rape, while arresting the accused-applicant, the mandate of Section 36 of the BNSS, seems to have not complied with by the arresting authority and therefore, there is a violation of Articles 21 & 22(1) of the Constitution of India. 12. The TCR in the instant case has been received and the same is perused. This Court has also heard the submissions made by the learned counsel appearing for the respective parties. 13. The fundamental rights are paramount under the Constitution of India. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Personal liberty, thus, is a sacred and cherished right under the Constitution. Article 22 of the Constitution of India further strengthens the protection of personal liberty of a person by providing that the person arrested must be informed of the grounds of his arrest at the earliest and should not be detained without informing him of such grounds. 14. In this connection, Section 36 and Section 62 of the BNSS being relevant are quoted herein below:- “36. Procedure of arrest and duties of officer making arrest- Every police officer while making an arrest shall- (a) Bear and accurate, visible and clear identification of his name which will facilitate easy identification; Page No.# 5/7 (b) Prepare a Memorandum of Arrest which shall be- (i) Attested by at least one witness, who is a member of the family of the arrested person or a respectable member of the locality where the arrest is made; (ii) Counter signed by the person arrested; and (c) Informed the person arrested, unless the Memorandum is attested by a member of his family, that he has a right to have a relative or a friend or any other person named by him to be informed of his arrest. “62. Arrest to be made strictly according to Sanhita-no arrest shall be made except in accordance with the provisions of this Sanhita or any other law for a time being in force providing for arrest”. 15. A conjoint reading of the aforesaid two Sections makes it clear that a Memorandum of Arrest is a written document that serves as confirmation that the individual in question was arrested. In addition to meeting the essential requirements, it must provide particulars that are specific. A minimum of one witness is required to vouch for its authenticity. For the best possible outcome, this witness ought to be a member of the accused person’s family and in the event that a family member is unavailable, a respectable individual of the locality in which the arrest is made may be called upon to testify as witness. In the second step, of course, the arrested person is required to counter sign the Arrest Memo himself. 16. What is discernable from the aforesaid two sections is that there is a mandate provided by the aforesaid Section 36 that the Arrest Memo has to be signed by a witness; either he is a member of the family of the arrested person or a respectable member where the arrest is made. Section 62 provides that no arrest shall be made except in accordance with the provisions of BNSS or any other law for the time being in force Page No.# 6/7 providing for arrest. Therefore, any arrest that has to be made is mandatorily has to comply with the provisions and procedure of arrest while making such arrest. Non compliance of such provisions will be in violation of the mandatory provisions which will, in turn, make such arrest illegal. Once an arrest becomes illegal, the arrested person shall have an unfettered right to be set at liberty, i.e., to be released on bail. 17. In the instant case in hand, it is seen that the Arrest-Memo does not contain any signature or attestation of any person, neither of the family member of the arrested person, nor of any respectable person of the locality, wherein the arrest was made. This clearly violates the mandate of Section 36 read with Section 62 of the BNSS, 2023. 18. Taking into account the ratio laid down by the Hon’ble Supreme Court in the case of D.K. Basu (supra) as well as the procedural mandates laid down under Section 36 of the BNSS, 2023, this Court is of the considered opinion that there is a violation of the mandate of Section 36 of the BNSS, 2023, in the instant case, while arresting the accused, whereby curtailing his fundamental rights guaranteed under Article 21 and 22 of the Constitution of India. 19. 19. In view of the aforesaid discussions and findings, this Court directs that the accused-applicant to be released forthwith on bail on furnishing a bail bond of Rs. 50,000/- (Rupees Fifty Thousand only) with two sureties of like nature to the satisfaction of the learned Special Judge (POCSO), Rangia, Assam, subject to the following conditions: - 1. that, the accused-applicant shall appear before the learned Trial Court as and when required during the trial of the case; 2. that, the accused-applicant shall not try to get in connection with the victim girl or her family, in any manner, during the trial of the case to influence them in any manner; Page No.# 7/7 3. that, the accused-applicant shall provide details of his Aadhar Card, Driving License, PAN-Card and Passport (if available) to the learned Special Judge (POCSO), Rangia, Assam. 4. that, the accused-applicant 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 before the Investigating Authority. 20. In view of the aforesaid directions, this bail application stands disposed of as allowed. JUDGE Comparing Assistant