Gauhati High Court
Page No.# 1/ vs The State Of Assam on 11 March, 2025
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/11
GAHC010043312025
2025:GAU-AS:2573
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./602/2025
HIRAMONI SAIKIA
W/O BASANTA BORA R/O 82
USHLAY APARTMENT
HATIGAON
LAKHIMINAGAR
UNDER HATIGAON PS
KAMRUP(M)
ASSAM.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP
ASSAM
------------
Advocate for : MR. M S HUSSAIN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
11-03-2025
Heard Mr. K. P. Pathak, learned Senior Counsel assisted by Mr. M. S. Hussain, learned
counsel for the petitioner and Mr. M. Phukan, learned Public Prosecutor, Assam, for the State.
2. By this application filed under Section 483 BNSS, 2023, the petitioner, namely,
Hiramoni Saikia, wife of Basanta Bora, resident of Village-B2, Ushlay Apartment, Hatigaon,
Lakhiminagar, Police Station-Hatigaon, District-Kamrup (Metro), Guwahati, Assam is seeking
bail in Patharkandi Police Station Case No.55/2025 corresponding to G.R.
No.283/2025, registered under Sections 318(4)/316(5)/336(3)/111(4) BNS, 2023, read with
Section 11 of the Public Examination (Prevention of Unfair Means) Act, in which, she was
arrested on 22.02.2025 and is in custody since then.
3. Mr. Pathak, learned Senior Counsel submitted that the petitioner was arrested on
22.02.2025 in Patharkandi P.S. Case No. 54/2025 under Sections 16(1)
(2)/318(4)/316(5)/336(3) of the BNS and a co-ordinate Bench by order dated 04.03.2025
passed in Bail Appln. No. 601/2025 released her on bail due to failure on the part of the
police from Patharkandi police station to comply with the provisions of Section 47 and 48 of
the BNSS, thereby violating the provisions of Article 22(1) of the Constitution of India.
4. It is submitted by Mr. Pathak, learned Senior Counsel that the facts stated in the
FIR relating to Patharkandi P.S. Case No. 54/2025 and that of Patharkandi P.S. Case No.
55/2025 are same and has arisen out of the same incident, except that the facts in said
Patharkandi P.S. Case No. 55/2025 are more elaborate, where Section 11 of the Public
Examinations (Prevention of Unfair Means) Act, 2024 has been added. Since the petitioner
has already been released on bail in said Patharkandi P.S. Case No. 54/2025, therefore, she is
also entitled for her bail in said Patharkandi P.S. Case No. 55/2025 as the prosecution while
arresting the petitioner in said Patharkandi P.S. Case No. 55/2025 did not comply with the
mandatory provisions of Sections 47 and 48 of the BNSS, 2023; did not specify the ground of
her arrest in the said case, neither communicated to her about it, nor to her family members,
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relatives or others as required under the law and detained her in custody in violation of the
provisions of Article 22(1) of the Constitution. Mr. Pathak submitted that there cannot be
registration of more than one FIR against the petitioner relating to the same incident, that
too, in the same police station. In this regard, Mr. Pathak, learned Senior Counsel placed
reliance on the judgment of the Hon’ble Supreme Court in the case of T.T. Antony Vs. State of
Kerala & Others, reported in (2001) 6 SCC 181.
5. Placing both the FIRs relating to Patharkandi P.S. Case No. 54/2025 as well as
Patharkandi P.S. Case No. 55/2025, Mr. Pathak, learned Senior Counsel stated that from the
forwarding report pertaining to the FIR of Patharkandi P.S. Case No. 54/2025 it can be seen
that the petitioner was arrested in the said case on 22.02.2025 at 03:00 P.M. and that in the
said forwarding report dated 22.02.2025 the concerned Investigating Officer clearly indicated
that another case being Patharkandi P.S. Case No. 55/2025 had already been registered
against the petitioner. From the FIR of Patharkandi P.S. Case No. 55/2025 Mr. Pathak, placed
that it was registered at 10:30 A.M which also indicate that related Patharkandi P.S. G.D.E.
No. 03 dated 22.02.2025 was registered at 14:50 hrs. (02:50 P.M.). Therefore, Mr. Pathak,
learned Senior Counsel submitted that in said Patharkandi P.S. Case No. 55/2025, the
petitioner could not have been shown arrested as in said Patharkandi P.S. Case No. 54/2025
she was arrested at 03:00 P.M on 22.02.2025 only.
6. Placing the remand order of the petitioner dated 22.02.2025 passed by learned
Sub Divisional Judicial Magistrate (Sadar), Sribhumi in said Patharkandi P.S. Case No.
55/2025, Mr. Pathak, learned Senior Counsel submitted that in the said Order dated
22.02.2025, the learned Magistrate did not indicate as to whether the authorities of
Patharkandi Police Station complied with the provisions of Sections 47 and 48 of the BNSS,
2023 by serving and/or communicating the grounds of arrest to the petitioner while arresting
her in said Patharkandi P.S. Case No. 55/2025 or not.
7. Mr. Pathak, learned Senior Counsel in support of his arguments and in favour of
the petitioner also relied on the decisions of the Hon’ble Apex Court in the cases of Vihaan
Kumar Vs. State of Haryana and Another, reported in (2025) SCC OnLine SC 269; Prabir
Purkayastha Vs. State (NCT of Delhi) , reported in (2024) 8 SCC 254; Babubhai Vs. State of
Gujrat & Others, reported in (2010) 12 SCC 254; Dhanraj Aswani Vs. Amar S. Mulchandani
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and Another, reported in (2024) 10 SCC 336 and Arnab Manoranjan Goswami Vs. State of
Maharashtra and Others, reported in (2021) 1 SCC 802.
8. After hearing Mr. Pathak, learned Senior Counsel and Mr. Phukan, learned Public
Prosecutor, Assam, the Court by a common order dated 05.03.2025 directed the State and
the Prosecution to submit its reply pertaining to the alleged violation of provisions of Article
22(1) of the Constitution and alleged non-compliance of the mandatory provisions of Sections
47 and 48 of the BNSS, 2023.
9. Pursuant to said order dated 05.03.2025, the State Government in the Home and
Political Department as well as the Deputy Superintendent of Police-cum-the Investigating
Officer of said Patharkandi P.S. Case No. 55/2025 filed their affidavits on 07.03.2025 and
10.03.2025 respectively. The petitioner jointly along with the other arrested accused persons
of said Patharkandi P.S. Case No. 55/2025 filed a common additional affidavit on 10.03.2025.
10. Mr. M. Phukan, learned Public Prosecutor, Assam with regard to the claim of the
petitioners pertaining to the two FIRs relating to the same incident submitted that in T.T.
Antony (Supra) and Babubhai (Supra), the incident involved in those cases relate to incidents
that occurred on a single day, whereas with regard to Patharkandi P.S. Case Nos. 54/2025
and 55/2025, the incident involved, were of continuous process that relates to economic
offences.
11. In their affidavits, i.e., the affidavits of the Home and Political Department as
well as that of the Investigating Officer of the case indicated that Patharkandi P.S. Case No.
54/2025 was registered on 21.02.2025 at 11:00 P.M., the G D Entry was made at 11:00 P.M.
on 21.02.2024 itself and the said FIR was uploaded on the Crime and Criminal Tracking
Network and Systems (CCTNS) on 22.02.2025 at 04:07 A.M. Similarly, Patharkandi P.S. Case
No. 55/2025 was registered on 22.02.2025 at 10:30 A.M. with G D Entry No. 3 dated
22.02.2025 at 14:50 Hrs and was subsequently uploaded on CCTNS on 22.02.2025 at 02:50
P.M. and that the time of upload on CCTNS is solely due to server related procedures.
12. The respondent submitted that the decision of the Hon’ble Supreme Court in the
case of Dhanraj Aswani (supra) relied by the petitioner is not applicable as the said case
relates to pre-arrest bail applications, whereas, the present case is a bail application relating
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to the formalities of “shown arrest”.
13. The respondents also stated that the Hon’ble Supreme Court have held that a
second FIR is permissible on the grounds of — (i) Different Scope: If the ambit of the two
FIRs are different, even if they arise from the same set of circumstances; (ii) Larger
Conspiracy: When investigation reveals that the first FIR is a part of a larger conspiracy that
needs separate investigation; (iii) New Facts or Evidence: If fresh information comes to light
that was not included in the first FIR; (iv) Separate Incidents: If the offences alleged in the
second FIR are distinct, even though they may be similar or connected to the first FIR and (v)
The second FIR uncovered wider corruption network involving multiple people over a period
of time.
14. However, in both the affidavits, the Home and Political Department of the State as
well as the concerned Investigating Officer of the case are silent relating to the compliance of
the mandatory provisions of Sections 47 and 48 of the BNSS. Mr. Phukan, learned Public
Prosecutor, Assam placed the Case Diary of Patharkandi P.S. Case No. 55/2025.
15. On perusal, it is seen that the relevant Case Diary does not contain anything to
show that the provisions of Sections 47 and 48 of the BNSS were complied by the authorities
concerned while arresting the petitioner.
16. Sections 50 and 50A of the Code of Criminal Procedure, 1973 (CrPC) have been
incorporated as Sections 47 and 48 in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
which are as follows —
Section 50 CrPC / Section 47 BNSS
“Person arrested to be informed of grounds of arrest and of right to bail. —
(1) Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is arrested or
other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person
accused of a non-bailable offence, he shall inform the person arrested that he is
entitled to be released on bail and that he may arrange for sureties on his behalf”.
Section 50A CrPC / Section 47 BNSS
“50A. Obligation of person making arrest to inform about the arrest, etc., to a
nominated person.–
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(1) Every police officer or other person making any arrest under this Code [Sanhita in
BNSS] shall forthwith give the information such arrest and place where the arrested
person is being held to any of his friends, relatives or such other persons as may be
closed or nominated by the person for the purpose of giving such information.
(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 may be prescribed in
this behalf by the State Government.
(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 compiled with in respect of such arrested person.”
17. Hon’ble Division Bench of this Court in the case of Ajit Kumar Sarmah -Vs- The State of
Assam and others, decided on 07-01-1976, reported in 1976 CRI. L. J. 1303 = 1976 STPL 89
Gauhati have held that–
The provision of Section 50 (CrPC, 1898) is mandatory and must be strictly complied
with. A citizen’s liberty cannot be curtailed except in accordance with law. Even if any
communication about the offence was orally made by respondent No. 3 (Officer-in-
charge of the concerned Police Station) to the petitioner, we do not know what kind of
communication was made, whether the communication of the full particulars or the
mere section of the offence was told to the petitioner. In the circumstances, we hold
that the arrest and detention of the petitioner by respondent No. 3 was in violation of
Sec. 50 CrPC. They are illegal, and, consequently, the P.R. bond that had to be
executed by the petitioner was also a nullity. In the result we cancel the P.R. bond
executed by the petitioner and he is freed from it.
It is to be noted that Section 50 CrPC, 1898 and Section 50 CrPC, 1973 are same.
18. In the case of Sheela Barse -Vs- State of Maharashtra , decided on 15-02-1983,
reported in (1983) 2 SCC 96 = AIR 1983 SC 78, the Hon’ble Apex Court, a Bench constituting
of three Hon’ble Judges have directed, amongst others, that —
“Whenever a person is arrested by the police without warrant, he must be
immediately informed of the grounds of his arrest and in case of every arrest it must
immediately be made known to the arrested person that he is entitled to apply for
bail.
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As soon as a person is arrested, the police must immediately obtain from him the
name of any relative or friend whom he would like to be informed about his arrest and
the police should get in touch with such relative or friend and inform him about the
arrest.”
19. Another Bench of three Hon’ble Judges of the Supreme Court in the case of Durga Pada
Ghosh -Vs- State of West Bengal, decided on 07-08-1972, reported in (1972) 2 SCC 656 have
held that —
The scheme underlying Article 22 of the Constitution highlights the importance
attached in our constitutional set-up to the personal freedom of an individual. Sub-
articles (1) and (2) refer to the protection against arrest and detention of a person
under the ordinary law. Persons arrested or detained under a law providing for
preventive detention are dealt with in sub-articles (4) to (7). Sub-article (5) says that
when a person is detained in pursuance of an order under a law providing for
preventive detention the grounds on which the order is made have to be
communicated to the person concerned as soon as may be and he has to be afforded
earliest opportunity to represent against the order. The object of communicating the
grounds is to enable the detenu to make his representation against the order. The
words “as soon as may be” in the context must imply anxious care on the part of the
authority concerned to perform its duty in this respect as early as practicable without
avoidable delay. Similarly when the representation is made it is in the fitness of things
that the said representation should be considered with the same sense of urgency with
which the grounds are intended to be communicated to the detenu. That is the only
way in which the purpose, for which the earliest communication of the grounds to the
person concerned is provided, can be achieved. The representation must, therefore, be
considered with due promptitude or expedition and without avoidable delay, in other
words with reasonable dispatch.
20. Further, a Bench of three Hon’ble Judges of the Supreme Court in the case of Joginder
Kumar -Vs- State of Uttar Pradesh , decided on 25.04.1994, reported in (1994) 4 SCC 260
have laid down that that —
“21. Then, there is the right to have someone informed. That right of the arrested
person, upon request, to have someone informed and to consult privately with a
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lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984
in England (Civil Actions Against the Police — Richard Clayton and Hugh Tomlinson; p.
313). That section provides:
“[W]here a person has been arrested and is being held in custody in a police station or
other premises, he shall be entitled, if he so requests, to have one friend or relative or
other person who is known to him or who is likely to take an interest in his welfare
told, as soon as is practicable except to the extent that delay is permitted by this
section, that he has been arrested and is being detained there.”
These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be
recognised and scrupulously protected. For effective enforcement of these
fundamental rights, we issue the following requirements:
1. An arrested person being held in custody is entitled, if he so requests to have one
friend, relative or other person who is known to him or likely to take an interest in his
welfare told as far as is practicable that he has been arrested and where he is being
detained.
2. The police officer shall inform the arrested person when he is brought to the police
station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the
arrest. These protections from power must be held to flow from Articles 21 and 22(1)
and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to
satisfy himself that these requirements have been complied with.
22. The above requirements shall be followed in all cases of arrest till legal provisions
are made in this behalf. These requirements shall be in addition to the rights of the
arrested persons found in the various police manuals.
23. These requirements are not exhaustive. The Directors General of Police of all the
States in India shall issue necessary instructions requiring due observance of these
requirements. In addition, departmental instruction shall also be issued that a police
officer making an arrest should also record in the case diary, the reasons for making
the arrest.”
21. It is to be noted herein that because of the Judgments of the Hon’ble Supreme Court in
the cases of Durga Pada Ghosh (supra) and Joginder Kumar (supra), the Code of Criminal
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Procedure 1973 was amended in the year 2005 and Section 50A was inserted in the CrPC
1973 w.e.f. 23-6-2006.
22. Though the background of the case of Dhanraj Aswani (supra) was pertaining to the
filing of an anticipatory bail application by an accused already in custody apprehending her
arrest in a different offence, but the Hon’ble Supreme Court in the said case have held that —
The subsequent offence is a separate offence for all practical purposes and that would
necessarily imply that all rights conferred by the statute on the accused as well as the
investigating agency in relation to the subsequent offence are independently protected.
23. Therefore, from the said decision of the Hon’ble Apex Court in the case of Dhanraj
Aswani (supra) it is clear that each case of subsequent offence are independent and the
investigating agency in relation to the said subsequent offence have to comply with all the
mandatory provisions including while arresting an accused of the case.
24. Though the Patharkandi P.S. Case No. 54/2025 and Patharkandi P.S. Case No. 55/2025
might have arisen from the same offence, but prima facie it appears to be continuous offence
and that the Patharkandi P.S. Case No. 55/2025 is different from the Patharkandi P.S. Case
No. 54/2025 as in the Patharkandi P.S. Case No. 55/2025 Section 11 of the Public
Examinations (Prevention of Unfair Means) Act, 2024 has been added.
25. In the cases of Pankaj Bansal Vs. Union of India , reported in (2024) 7 SCC 576, Prabir
Purakayastha (supra) and Vihaan Kumar (supra) the Hon’ble Apex Court have held that – the
right to be informed about the ground of arrest flows from Article 22 (1) of the Constitution
and that any infringement of said fundamental right would vitiate the process of arrest and
remand as the grounds on which the liberty of a citizen is curtailed must be communicated to
him in writing so as to enable him/her to seek remedial measures against the deprivation of
liberty. In the case of Pankaj Bansal (supra) the Hon’ble Supreme Court have laid down that
the grounds of arrest must be communicated in writing to the person arrested of an offence
at the earliest.
26. In the case of Prabir Purakayastha (supra) the Hon’ble Apex Court clarified “grounds of
arrest” specifying that it would require to contain all such details in hand of the investigating
officer which necessitate the arrest of the accused. Simultaneously, the grounds of arrest
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informed in writing must convey to the arrested accused all basic facts on which he/she was
being arrested so as to provide him/her an opportunity of defending himself/herself against
custodial remand and to seek bail. Thus, the “grounds of arrest” would invariably be personal
to the accused and cannot be equated with the “reasons of arrest” which are general in
nature.
27. In the case of Vihaan Kumar (supra) the Hon’ble Apex Court have held that — The
requirement of informing the person arrested of the grounds of arrest is not a formality but a
mandatory constitutional requirement under Article 22 (1) included in the Part-III of the
Constitution under the heading of Fundamental Rights, as such, it is the fundamental right of
every person arrested and detained in custody to be informed of the grounds of arrest as
soon as possible. If the grounds of arrest are not informed as soon as may be after the
arrest, it would amount to violation of the fundamental right of the arrestee guaranteed
under Article 22(1) which would also amount to depriving the arrestee of his/her liberty, since
Article 21 of the Constitution provides that no person can be deprived of his liberty except in
accordance with the procedure established by law and the procedure established by law also
includes what is provided in Article 22(1).
28. In the said case of Vihaan Kumar (supra) the Hon’ble Apex Court further held that — if
the mandate of Article 22 is not followed while arresting a person or after arresting a person,
it will also violate fundamental right to liberty granted under Article 21 and the arrest will be
rendered illegal. On the failure to comply with the requirement of informing grounds to arrest
as soon as may be after the arrest, the arrest is vitiated and once the arrest is held to be
vitiated, the person arrested cannot remain in custody even for a second.
29. The Hon’ble Apex Court in the said case of Vihaan Kumar (supra) have held that — the
requirement of Section 60 CrPC is in addition to what to provided in Article 22(1) of the
Constitution and Section 47 of the BNSS is the correspondent provision and therefore, what
the Apex Court have held about Section 50 CrPC will apply to Section 47 of the BNSS.
30. In the case in hand the respondent authorities failed to place anything before the Court
that the grounds of arrest in said Patharkandi P.S. Case No. 55/2025 was communicated to
the petitioner in writing, violating Articles 21 and 22(1) of the Constitution as well as
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provisions of Sections 47 and 48 of the BNSS. As such, the arrest of the petitioner, namely,
Hiramoni Saikia shown on 22.02.2025 in said Patharkandi P.S. Case No. 55/2025 being
illegal as she was not provided and/or communicated with the grounds of arrest in violation
of her fundamental right, stands vitiated.
31. Therefore, the petitioner, namely, Hiramoni Saikia, wife of Basanta Bora, shall be
released forthwith in said Patharkandi P.S. Case No.55/2025.
32. Accordingly, the petitioner, namely, Hiramoni Saikia, wife of Basanta Bora be
released on bail forthwith in said Patharkandi P.S. Case No. 55/2025 on furnishing a bail bond
of Rs. 30,000/-, to the satisfaction of the learned Chief Judicial Magistrate, District-Sribhumi,
Karimganj (erstwhile District-Karimganj).
33. Bail application is accordingly stands disposed of.
34. Return the case diary.
JUDGE
Comparing Assistant
