Page No.# 1/5 GAHC010019212026 2026:GAU-AS:4481 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./297/2026 RAKESH ROY S.O SOHEN CH. ROY, PERMANENT RESIDENT OF KADAMTALA, PS KOKRAJHAR, BTR, ASSAM, PRESENT ADDRESS GORAIBARI PS UDALGURI, DIST UDALGURI, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM 2:MILAN DAS CHAIRMAN MRSDNGO UDALGURI PO AND PS UDALGURI 784509 SON OF LATE PRADIP DAS RESIDENT OF AG PATH PO AND PS AND DIST UDALGURI ASSAM Advocate for the Petitioner : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K DAS Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, AMICUS CURIAE(R2) Page No.# 2/5 BEFORE HON’BLE MR. JUSTICE RAJESH MAZUMDAR ORDER 27.03.2026 Heard Mr B K Mahajan, learned counsel appearing for the petitioner. Also heard Ms M K Brown, learned Amicus Curiae appointed, and Mr R J Baruah, learned Additional Public Prosecutor for the State of Assam. 2. This is a bail application under section 483 of the BNSS, 2023 praying for grant of bail to the petitioner, namely, Rakesh Roy, in connection with Special (P) Case No. 98/2025, under Section 14(1) of the Child and Adolescent Labour (Prohibition and Regulation) Act and Sections 8/10/12 of the POCSO Act, 2012, pending in the Court of learned Additional Sessions Judge -cum- Special Judge, POCSO, Udalguri, arising out of Udalguri Police Station Case No. 110/2025. The petitioner was arrested on 21.11.2025, and has been in custody since that day. 3. The learned counsel, Mr Mahajan has submitted that in the absence of a notice under Section 35 (3) of the BNSS, 2023, the arrest of the petitioner and his continued detention would be deemed illegal and unconstitutional and the petitioner would be entitled to the grant of bail. 4. The learned Additional Public Prosecutor has gone through the scanned copy of the Trial Court Records and has submitted that although a notice under Section 35(3) of the BNSS, 2023, had been served upon the wife of the Page No.# 3/5 petitioner on her appearance before the Investigating Officer and she was allowed to go on bail, no such notice is discernible from the case records to have been served upon the petitioner. 5. The learned Amicus Curiae has submitted that the house of the petitioner had been searched thrice before he was apprehended. The accused were not found there. The accused had appeared before the Investigating Officer on their own free will and on the basis of the circumstances which were before the Investigating Officer at that particular point of time, the Investigating Officer had deemed it fit to serve the notice on the wife of the petitioner and to arrest the petitioner on the basis of the allegations levelled in the FIR. 6. The learned counsel for the petitioner has placed reliance on the Judgment of the Apex Court in Satender Kumar Antil -Vs- Central Bureau of Investigation and Another; reported in 2026 SCC Online SC 162, to impress that when the notice under Section 35(3) of the BNSS, 2023, is not served upon the accused qua an offence punishable with imprisonment upto 7 (seven) years, the arrest would become illegal and the further detention of the petitioner would stand to be unconstitutional. He has also placed reliance on the same Judgment to impress that while making an arrest after the stage of issuing a notice seeking presence under Section 35(3) of the BNSS, 2023, the circumstances and factors that were in existence at the time of issuing the said notice are not required to be taken into consideration by a Police Officer and while effecting an arrest, after the service of the notice, the same must be based on materials and facts which were not available with the Police Officer at the time of issuing the notice, making the power of arrest under Section 35 (6) of the BNSS, 2023, a power to be exercised rather sparingly, and only under the circumstances mentioned in the order itself. Page No.# 4/5 7. This Court has gone through the records received from the Trial Court. It is seen that although the punishment earmarked for the allegations against the petitioner carry sentences below seven years of imprisonment, there was no notice under Section 35 (3) served upon the petitioner prior to his arrest. Rather, this Court finds, on the submissions made, that the petitioner had voluntarily appeared before the investigating authority along with his wife even without the notices under Section 35(3) being served on them. Therefore, on a prima facie view, this Court is of the opinion that the petitioner had exhibited his willingness to participate in the investigation process. There is nothing on record to disclose the intent or reasons of the arresting officer, who arrested the petitioner on such an appearance before the Investigating Officer on the first day itself. The notices under Section 47 and Section 48 of the BNSS, 2023, refer to the contents of the FIR, and, therefore, this Court is also of the opinion that the power of arrest under Section 35 (6) of the BNSS, 2023, had not been properly exercised by the arresting officer. 8. In such a view of the matter, this Court finds that further detention of the petitioner following the aforesaid arrest to be unconstitutional. Accordingly, the petitioner would be entitled to bail. It is therefore directed that the petitioner shall be released on bail in connection with Special (P) Case No. 98/2025, on furnishing bail bond of Rs. 25,000/-, with one surety of the like amount to the satisfaction of the learned Additional Sessions Judge -cum- Special Judge (POCSO), Udalguri subject further to the following conditions also: 1. The accused must not contact, threaten, or influence the victim or the family, directly or indirectly. 2. The accused shall not influence the witnesses in any way. 3. The appellant shall not make any attempts to reassociate with the Page No.# 5/5 victim or her family in any manner either through a device or in- person. 4. The learned trial court shall be at liberty to impose such other conditions as may be necessary to ensure that the accused does not influence the witnesses or the trial in any manner and that he does not avoid or delay the trial proceedings. 5. In the event of violation of any terms and conditions of bail, the learned trial court shall be at liberty to cancel the bail. 9. This bail has been granted only on the violation of the provisions of Section 35 (3) of the BNSS, 2023. 10. Bail Application stands disposed of. JUDGE Comparing Assistant