Page No.# 1/15 GAHC010086092026 2026:GAU-AS:7223 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1199/2026 JUBER AHMED S/O- LATE ABUL HUSSAIN. R/O- VILL.- PATHARIYA B BLOCK, P.S.- NILAMBAZAR, DIST.- SRIBHUMI, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP ASSAM Advocate for the Petitioner : MR A HAI, MR. M AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA JUDGMENT & ORDER (Oral) Date : 25.05.2026 Heard Mr. M. Ahmed, learned counsel, appearing on behalf of the accused- applicant. Also heard Mrs. S. H. Bora, learned Addl. Public Prosecutor, representing the State. 2. This is an application filed under Section 483 of BNSS, 2023, praying for Page No.# 2/15 granting bail to the accused-applicant in connection with Sessions Case No. 197/2025, pending before the Court of learned Addl. Sessions Judge (FTC), Sribhumi. 3. An FIR dated 23.06.2025 was lodged by the victim women, alleging that she was raped while she was going to her office wherein, she works as ASHA worker. It was alleged that the accused-applicant, while she was on her way, forcibly took her to a secluded place and raped her. 4. On receipt of the FIR, police registered the Nilambazar Police Station Case No. 86/2025. After investigation, a charge-sheet was filed against the accused- applicant. Subsequently, charges were framed against the accused-applicant in Sessions Case No. 197/2025, which is pending before the learned Additional Sessions Judge (FTC), Sribhumi. The accused-applicant has been charged under Sections 126(2)/127(2)/74/75/76/64 of the BNS, 2023. 5. The prosecution evidence has not commenced as yet. 6. The accused-applicant, on an earlier occasion, filed a bail application, i.e., Bail Application. No. 258/2026 before this Court, which was rejected after due consideration by this court, vide its order dated 19.02.2026. 7. TCR in the instant case has been received and on perusal, it is seen that though 17 dates have already been given till date, no evidence has been recorded before the Trial Court. It is seen that the accused-applicant is behind the bar for the last 336 days. 8. Mr. Ahmed, learned counsel for the accused-applicant submits that the accused-applicant has been falsely implicated in the instant case. He submits that the accused-applicant is 31 years old, whereas, the victim women is 47 years old Page No.# 3/15 and the story that has been narrated in the FIR, apparently, looks like a concocted one and the FIR has been filed with some ulterior motive. He submits that in spite of filing of the charge-sheet and framing of charge, way back on 23.07.2025 and 17.10.2025 respectively and 17 dates have been given, no prosecution witnesses have been examined till date before the Trial Court. He further submits that while arresting the accused-applicant by the police authority, the police authority has not complied with the mandates of Section 36 of BNSS, 2023 in the instant case and therefore, in view of such violation which actually curtails the fundamental rights of the accused-applicant under Article 21 and 22(1) of the Constitution of India, the accused-applicant’s arrest is liable to be declared illegal and therefore, he has the right to be released on bail on that ground alone. He submits that while arresting the accused-applicant, though the police authority has prepared the Arrest Memo under Section 36 of the BNSS, 2023 the Arrest Memo does not contain any attestation either of any of his family members or any respectable person of the locality wherein the accused-applicant was arrested. Therefore, since the statutory compliance is not there in the instant case, the accused-applicant should be released on bail on that ground alone. 9. Per contra, Mrs. S.H. Bora, learned Addl. P.P., submits that there is no wrong committed by the police authority while arresting the accused-applicant in the instant case. She submits that though there is no attestation in the Arrest Memo, a notice under Section 48 of the BNSS, 2023 has been issued to one Mehmuda Khatoon, at the time of his arrest. She submits that in view of the aforesaid, though no attestation is present of any witness in the Arrest Memo prepared under Section 36 of the BNSS, 2023 no prejudice has been caused to the accused-applicant, since aforesaid Mehmuda Khatoon, who has been named by the accused-applicant has Page No.# 4/15 been intimated about his arrest at the time of his arrest. Accordingly, the learned APP opposes the prayer of bail of the accused-applicant. 10. On perusal of the TCR, it is seen that the Arrest Memo under Section 36 of the BNSS, 2023 has been prepared by the police authority, however, no attestation/signature was obtained from any of the family member of the accused- applicant or any respectable member of the locality as required under Section 36 of the BNSS, 2023. It is seen that the Arrest Memo has been counter-signed by the arrested accused-applicant and the arresting officer concerned. It is also seen that a notice under Section 48 of the BNSS, 2023 has been issued to one Mehmuda Khatoon at the time of the arrest of the accused-applicant. 11. Now the question arises as to whether issuance of a notice under Section 48 of the BNSS, 2023 at the time of arrest of an accused person shall suffice the mandates of section 36 of the provisions of the BNSS, 2023 though there is no counter-sign or attestation by any witness or any family member of the accused arrested person? 12. In consideration of the aforesaid issue, it may be relevant herein to refer to the principles laid down by the Hon’ble Supreme Court in the landmark case of D.K. Basu Vs. State of West Bengal (With Ashok K Johri Vs. State of UP), reported in (1997) 1 SCC 416, wherein, the Hon’ble Supreme Court in paragraph-35 has directed as follows: - “35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle Page No.# 5/15 interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, Page No.# 6/15 should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.” 13. From the above, it is clear that Hon’ble Supreme Court has directed that while arresting a person, at the time of his arrest, an Arrest Memo is required to be prepared. Sub-paragraph (2) of Paragraph 35 provides that the Arrest Memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. Sub-paragraph (3) of Paragraph 35 provides that a person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. It is also seen that the Hon’ble Supreme Court has not provided for any exception in Sub-paragraph (2) about the requirement of attestation by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. 14. It may be worthwhile to refer to the observations of the Hon’ble Supreme Page No.# 7/15 Court made in paragraphs 37, 38 and 39 of the aforesaid judgment, which are extracted herein below:- “37. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. 38. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. 39. The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on All India Radio besides being shown on the National Network of Doordarshan any by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.” 15. In view of the aforesaid directions in the case of D.K. Basu (supra), certain amendments have been carried out in the Code of Criminal Procedure, 1973 by way of inclusion of Section 41A, Section 41B, Section 41C and Section 41D, vide the Act 5 of 2009, with effect from 01.11.2010. 16. Section 41B of the Cr.P.C., laid down the procedure of arrest and duty of the officer making the arrest. After coming into effect of the BNSS, 2023, Section 41B Page No.# 8/15 has been retained in the BNSS, 2023 as Section 36. 17. Section 36 of the BNSS being relevant in the instant case is extracted 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; (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.” 18. What is discernible from the aforesaid Section 36 is that every police officer while making an arrest mandatorily has to bear an accurate, visible and clear identification of his name, so that, he can be identified easily. It is also mandated that while making the arrest, the police officer shall have to prepare the Arrest Memo which shall be attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality wherein the arrest is made. It is also provided that the Arrest Memo is mandatorily required to be countersigned by the person arrested. Therefore, it is apparently very clear that the Arrest Memo has to be attested by at least one witness, either a family member or a respectable person of the locality wherein the person is arrested. In view of the directions of the Hon’ble Supreme Court as discussed above and due to the Page No.# 9/15 provisions under Section 36 of BNSS, 2023, the compliance of the same is unavoidable for the police authority while making the arrest. 19. It is also seen that in terms of the Section 36(c) of the BNSS, 2023, the arrested person shall be informed that he has the right to have a relative or a friend or any other person named by him to be informed of his arrest, in the event, the Arrest Memo is not attested by a member of his family. Therefore, it is seen that though a respectable member of the locality wherein the arrest is made, has signed the Arrest Memo, an additional duty is casted upon the police authority to inform the person arrested about his right to be informed about his arrest to a relative or a friend or any other person named by him. So, it is discernible from the aforesaid provisions that if the Arrest Memo is signed by any member of the family or a friend or a person named by the arrested person, the requirement of informing the person arrested that he has the right to have a relative or a friend or any other person named by him to inform of his arrest is not mandatory, since by being an attested witness in the Arrest Memo, his family member is already informed about his arrest. Therefore, an attestation in the Arrest Memo by a witness is must and there is no exception to that has been provided in Section 36 of BNSS, 2023. 20. At this point of time, it will be relevant to mention Section 48 of the BNSS, 2023 (Section 50A of the Cr.P.C.). The provisions being relevant for consideration in the instant case, the same are extracted herein below: - “48. Obligation of person making arrest to inform about arrest, etc., to relative or friend.- (1) Every police officer or other person making any arrest under this Sanhita shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his relatives, friends or such other persons as may be disclosed or mentioned by the arrested person for the purpose of giving such information and also to the designated police officer in the district. Page No.# 10/15 (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as the State Government may, by rules, provide. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.” 21. From the above, it is clear that Section 48 mandates that when an arrest is made under the BNSS, the police officer shall forthwith give such information to any of his relative or friends or any other such person as may be disclosed or nominated by the arrested person for the purpose of giving such information. In addition to such information to any member of the family or friends, the designated police officer in the district is also to be informed. It also mandates that the police officer shall inform the arrested person of his arrest under Sub-Section (1) as soon as he is brought to the police station. 22. It is seen that Section 50A of the Cr.P.C., corresponding to Section 48 of the BNSS, was inserted in the Cr.P.C., vide the Act 25 of 2005, with effect from 23.06.2006. Therefore, it is clear that Section 50A of the Cr.P.C. was already in existence when Section 41B of Cr.P.C (corresponding to Section 47 of BNSS, 2023) was inserted with effect from 01.11.2010. Therefore, it cannot be denied that, while inserting Section 41B into the Cr.P.C., the Legislature was aware of the existence of Section 50A therein and Section 41B was inserted with such knowledge. So, it can be said that though the mandate under Section 50A was already there, the mandate under Section 41B has been included in the Cr.P.C. independently. This shows that both the Sections 41B and 50A are two independent provisions which require to be Page No.# 11/15 complied with independently. After coming into effect of the BNSS, 2023, accordingly, Section 36 and Section 48 of BNSS are required to be complied with by the police authority while arresting an accused person. 23. Now, another important provision which requires consideration is Section 62 of the BNSS, 2023, which is being relevant in the instant case, is extracted herein below: - “62. Arrest to be made strictly accordingly 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”. 24. Section 62 of the BNSS makes it clear that any arrest made under the BNSS has to be made in strict compliance of the provisions of the BNSS. 25. Therefore, a combined reading of the aforesaid Sections of 36, 48 & 62 makes it clear that while arresting an accused person, the provisions of Section 36 as well as Section 48 have to be independently complied with. There is no exception which has been curved out from Section 36, providing that in the event of compliance of Section 48, the requirement of attestation of at least one witness, who is a family member of the arrested person or a respectable member of the locality where the arrest is made is exempted. Therefore, statutory provisions of Section 36 of BNSS, 2023 cannot be said to be negated by compliance of provisions of Section 48 of BNSS, 2023. 26. There is another aspect that needs to be considered is that in the Arrest Memo so prepared by the police authority while arresting an accused person, the attestation has to be made by a member of the family of the person arrested. Meaning thereby, only a member of the family can be a witness in the Arrest Memo. But, under Section 36(c), the compliance is required for the police authority to Page No.# 12/15 inform the person arrested if the Arrest Memo is not signed by any family member that he has a right to have a relative or friend or any other person to be informed of his arrest. So purposes are distinct and different. 27. Section 48 of the BNSS, 2023 also provides for the obligation under Section 48 to inform about the arrest to any of his relatives, friends or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. Therefore, in the considered view of this Court, the mandate of Section 36 is very clear that the Arrest Memo has to be signed by either any of the family member or a respectable member of the locality wherein the arrest is made. Whereas, under Section 48 of the BNSS, 2023, the obligation of the police authority is to give the information forthwith to any of his relatives, friends or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information and therefore, the obligation is not limited to a member of the family rather, the same has been widen up by inclusion of any such relatives, friends or such other persons as may be disclosed or nominated by the arrested person. 28. 28. As discussed above, Section 62 of the BNSS provides that no arrest shall be made except in accordance with the provisions of the Sanhita or any other law for the time being in force 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. 29. It is seen from the above discussion that language used is Section 36 of the Page No.# 13/15 BNSS, 2023 is unambiguous. Therefore, it may not be correct on the part of the court to provide a different interpretation except what could be gathered from a plain and simple reading of the provision. In this connection, the case of Nasiruddin V Sita Ram Agarwal, reported in (2003)2 SCC 577 can be referred to. Paragraph 37 being relevant is extracted herein below: “The Court’s jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression “shall or may” is not decisive for arriving at a finding as to whether the statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character.” 30. Similarly, in the case of Satheedevi Vs. Prasanna and Another, reported in (2010) 6 SCR 657, the Hon’ble Supreme Court has observed as follows: - “10. Before proceeding further, we may notice two well recognized rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise - Kanai Lal Sur v. Paramnidhi Sadhukhan 1958 SCR 360. The other important rule of interpretation is that the Court cannot rewrite, recast or reframe the Page No.# 14/15 legislation because it has no power to do so. The Court cannot add words to a statute or read words which are not therein. Even if there is a defect or an omission in the statute, the Court cannot correct the defect or supply the omission. Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323, Shyam Kishori Devi v. Patna Municipal Corporation (1966) 3 SCR 366.” 31. In view of the aforesaid discussions, this Court is of the considered view that the mandates of Section 36, BNSS, 2023 cannot be exempted by complying with the mandates of Section 48 of the BNSS, 2023. Therefore, if there is any violation while preparing the Arrest Memo by not obtaining the attestation of either of a family member or a respectable person of the locality wherein the arrest is made, the arrest becomes in violation of Section 36, BNSS, 2023 and therefore, the same shall be treated as an illegal arrest. 32. Coming back to the facts of the instant case in hand, it is seen that the Arrest Memo does not contain any attestation from any of the family member or any respectable member of the locality wherein the arrest was made. This clearly violates the mandates of Section 36 read with Section 62 of the BNSS, 2023. 33. In view of the aforesaid, this Court is of the considered view that non compliance of Section 36, BNSS, 2023 in the instant case, has made the arrest of the accused-applicant, an illegal arrest, which provides the accused-applicant the right to be released on bail. 34. In view of the principles laid down by the Hon’ble Supreme Court in the case of D.K. Basu (supra) as well as the procedural mandates as laid down under Section 36 and Section 62 of the BNSS, 2023, this Court is of the view that there is a violation of mandates of Section 36 read with Section 62 of the BNSS, 2023 in the instant case, whereby, the fundamental rights guaranteed to the accused-applicant under Article 21 & 22 (1) of the Constitution of India, has been illegally curtailed. Page No.# 15/15 35. Accordingly, in view of the aforesaid discussions and findings, this Court directs 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 amount to the satisfaction of the learned Addl. Sessions Judge (FTC), Sribhumi, subject to the following conditions: - (i) that the accused-applicant shall appear before the Trial Court as and when required; (ii) 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 Trial Court; (iii) that the accused-applicant shall provide his contact details including photocopy of Aadhar Card or Driving License or PAN card as well as, mobile number, and other contact details to the Additional Sessions Judge (FTC), Sribhumi; (iv) that the accused-applicant shall not commit any offence while on bail. 36. In view of the aforesaid directions, this Bail Application stands disposed of as allowed. JUDGE Comparing Assistant