Page No.# 1/5 GAHC010007562026 2026:GAU-AS:1720 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./131/2026 ATIFUL RAHMAN ALIAS BULU S/O ATAUR RAHMAN R/OP VILL- HIRAJANI, NEAR HIRAJANI PRATHAMIK VIDYALAYA, P.O. KALITAKUCHI, P.S. HAJO DIST. KAMRUP (R), ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MS. S K NARGIS, F RAHMAN,MS N SULTANA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 09-02-2026 Heard Ms. S. K. Nargis, learned counsel appearing for the accused applicant and Ms. N. Das, learned Additional Public Prosecutor for the State. 2. This is an application under Section 483 of the BNSS, 2023 for granting bail to the accused applicant in connection with Pathsala P. S. Case No. 03/2026 Page No.# 2/5 under Sections 3(5)/305(a) of the BNS read with Section 13(1) of the Assam Cattle Preservation Act, 2021 and Section 11(1)(a) of the Preservation of Cruelty to Animals Act, 1960. 3. The brief facts of the case are as follows: On 04.01.2026, the complainant, Shri Pranjit Talukdar of Doligaon under Pathsala Police Station, lodged an FIR alleging that a red and white colour cow, belonging to him, had been missing since 28.12.2025 and could not be traced despite the search. However, on 01.01.2026, the complainant watched a video broadcast on a local television channel, in which it was seen that some unknown miscreants had forcibly lifted a red and white cow and loaded it into a white colour luxury vehicle. Upon seeing the video, the complainant identified the cow as his missing cow, and therefore, he suspected that some unknown miscreants had stolen his cow. By filing the FIR, he prayed for legal action against the unknown miscreants and for the recovery of the cow. On receipt of the FIR, the Police registered Pathsala P.S. Case No. 03/2025 under the aforementioned sections. 4. The accused applicant was arrested on 13.01.2026 in connection with the aforementioned case and produced before the Court on the next date, i.e., 14.01.2026, and since then, he has been languishing in the jail. 5. Ms. S. K. Nargis, learned counsel for the accused applicant, submits that the accused applicant is in no way linked to the alleged theft of the cow. In fact, he has been arrested only on the basis of the statement of a co-accused without any independent, direct or corroborative evidence linking him to the commission of the alleged cattle theft. Learned counsel submits that the primary allegation against the accused applicant pertains to Section 305(a) of the BNS, relating to theft from a means of transport, which is an offense punishable with imprisonment extending up to 7 (seven) years. She submits that custodial arrest Page No.# 3/5 for offenses punishable with up to 7 (seven) years is an exception and not the rule and the investigating agency is duty-bound to justify the necessity of arrest. She submits that the arrest of the accused under Section 35 of the BNSS is a mandatory procedure, and the safeguards prescribed therein were not followed in this case. She submits that, in the instant case, no notice under Section 35(3) of the BNSS was issued to the accused applicant; therefore, the arrest is in violation of the mandatory provisions of the BNSS as laid down under Section 35 of the BNSS. 6. In support of her arguments, Ms. Nargis, learned counsel, has relied upon the case of Arnesh Kumar Vs. State of Bihar reported in 2014 Supreme (SC) 489. 7. On the other hand, Ms. N. Das, learned Additional Public Prosecutor for the State, by producing the Case Diary before this Court, has submitted that there are statements from various witnesses and the co-accused alleging that the accused applicant was the mastermind behind the cattle theft. The accused applicant himself also confessed that he has been involved in various cattle thefts over the last several years. She submits that in view of such incriminating materials against the accused applicant, the bail application should be rejected. 8. This Court has considered the submissions made by the learned counsel for the respective parties and carefully perused the Case Diary submitted before this Court. 9. It is seen that the accused applicant was arrested on the basis of a statement made by the co-accused in the instant case. Although he was not named in the FIR filed by the complainant, it is noted that the accused applicant was arrested on 13.01.2026 and has been in custody since 14.01.2026. From Page No.# 4/5 the materials brought before this Court, it appears that the co-accused has implicated the accused as the mastermind of the instant cow theft. This Court has considered the submission of the learned counsel for the accused applicant that the ratio laid down in Arnesh Kumar (supra) applies in this case. In Arnesh Kumar (supra), the Hon'ble Supreme Court held that Section 41A of the Cr.PC (Section 35 of the BNSS) provides that in cases where the arrest of a person is not required under Section 41(1) of the Cr.PC, the police officer is required to issue a notice directing the accused to appear before him at a specific place and time. Law obliges such an accused to appear before the police officer, and it further mandates that if such an accused complies with the terms of the notice, he shall not be arrested unless, for reasons to be recorded, the police officer is of the opinion that arrest is necessary. The Hon'ble Supreme Court has also held that the ratio laid down in the Arnesh Kumar (supra) case is to be followed in all cases where offenses are punishable with imprisonment for a term that may be less than or extend to 7 (seven) years, whether with or without fine. Therefore, in the instant case, since Section 305(a) provides for punishment of up to 7 (seven) years, the rigours of Section 35 of the BNSS will applicable and from the materials, it is evident that no such compliance has been made by the investigating authority. 10. In view of the aforesaid ratio laid down by the Hon'ble Supreme Court and after considering the matter in it’s entirety, this Court is of the opinion that the accused applicant should be granted bail at this stage. Therefore, it is directed that the accused applicant shall be released on bail upon furnishing a bail bond of Rs. 30,000/- (Rupees Thirty Thousand) with a surety of like amount to the satisfaction of the learned Chief Judicial Magistrate, Bajali, Assam, subject to the following conditions: Page No.# 5/5 i. that the accused applicant shall cooperate with the investigation; ii. that the accused applicant shall appear before the investigating authority as and when required; iii. 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 disposing such facts before the investigating authority against the accused applicant; 11. In view of the aforesaid directions, the instant bail application is, accordingly, disposed of as allowed. 12. Return the Case Diary. JUDGE Comparing Assistant