Gauhati High Court
Mahbubul Hoque vs The State Of Assam on 3 March, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
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GAHC010042492025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./563/2025
MAHBUBUL HOQUE
S/O LATE IBRAHIM ALI R/O GYAN KUTIR, NIRIBILI PATH, GHORAMARA
CHARIALI, BHETAPARA, GUWAHATI-781027, UNDER BASISTHA PS,
KAMRUP(M), ASSAM.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. A M BORA, MS. C CHOUDHURY,MR. D K BAIDYA,MR. V
A CHOWDHURY
Advocate for the Respondent : PP, ASSAM,
:: PRESENT ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioner : Mr. A.M. Bora,
Senior Advocate.
Mr. D.K. Baidya,
Advocate.
For the Respondent : Mr. M. Phukan,
Public Prosecutor, Assam.
Date of Hearing : 28.02.2025.
Date of Judgment : 03.03.2025.
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O R D E R (CAV)
Heard Mr. A.M. Bora, learned senior counsel assisted by Mr. D.K. Baidya, learned
counsel appearing for the petitioner. Also heard Mr. M. Phukan, learned Public
Prosecutor, State of Assam.
2. This is an application under Section 483 of the BNSS, 2023, whereby the
petitioner Mahbubul Hoque has prayed for releasing him on bail after he was arrested
in connection with Patharkandi P.S. Case No.54/2025.
3. On 21.02.2025, police lodged an FIR before Patharkandi Police Station with the
below mentioned allegations –
i. On 21.02.2025, 274 students appeared at Central Public School,
Patharkandi for writing the Physics Paper of 12 th Standard CBSE
Examination. This Central Public School, Patharkandi is an institution run
by E.R.D. Foundation based at Guwahati. This E.R.D. Foundation is run by
USTM.
ii. Out of the aforesaid 274 students, 15 were from Adarsha Vidyalaya,
Patharkandi and 45 of them are from Central Public School, Patharkandi.
The remaining 214 students were enrolled in Central Public School, but
they never attended any classes in that school. In fact, under the Vision
50 Programme, they were attending classes at USTM, Guwahati. This
Vision 50 Programme was a special coaching programme run by USTM.
iii. It is alleged in the FIR that those 214 students had created law &
order problem on the day of the examination. Their contention was that
at the time of admission, they were promised that at the time of
examination, the Invigilators would help them in writing the 12 th Standard
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Examination. But the 214 students did not get the promised help from the
Invigilators.
iv. Out of the 214 students, some even did not know that they were
students of Central Public School, Patharkandi. They only knew that they
were students of USTM under the Vision 50 Programme.
v. The said 214 students, also contended that the Invigilators and
Faculty Members had helped 45 local students of Patharkandi when those
students adopted unfair means to write in the examination.
vi. Some students alleged that the USTM authority took Rs.5 Lakh from
each of the aforesaid 45 students so that they can clear the paper.
4. The informant had alleged that the present petitioner being the head of USTM
authority, cheated the students by making false promises.
5. Police registered a case being Patharkandi P.S. Case No.54/2025. The petitioner
was arrested by police at Guwahati. His wife Shahida Rahman was served with a
notice wherein it was mentioned that the Investigating Officer of the case has found
sufficient material evidence against her husband and for that matter, he was arrested
by police.
6. After arrest, the petitioner was produced before the Chief Judicial Magistrate,
Sribhumi, Assam. It was pleaded before the court below that at the time of arrest, the
provision of law as contained in Section 47 of the BNSS, 2023, was not complied with.
The judgment of the Hon’ble Supreme Court that was delivered in Vihaan Kumar vs.
State of Haryana & Anr., reported in 2025 SCC OnLine 269 was also referred to by the
petitioner. The learned court below had held that since the petitioner had filed the bail
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application before the court, it meant that the petitioner had full knowledge about the
case.
7. In order to buttress his points, Mr. Bora has relied upon the decision of the
Supreme Court that was delivered in Prabir Purkayastha v. State (NCT of Delhi),
(2024) 8 SCC 254. Paragraphs 28, 29, 45 and 48 of the said judgment are quoted as
under:
“28. The language used in Article 22(1) and Article 22(5) of the Constitution of India
regarding the communication of the grounds is exactly the identical. Neither of the
constitutional provisions require that the “grounds” of “arrest” or “detention”, as the
case may be, must be communicated in writing. Thus, interpretation to this important
facet of the fundamental right as made by the Constitution Bench while examining the
scope of Article 22(5) of the Constitution of India would ipso facto apply to Article
22(1) of the Constitution of India insofar as the requirement to communicate the
grounds of arrest is concerned.
29. Hence, we have no hesitation in reiterating that the requirement to communicate
the grounds of arrest or the grounds of detention in writing to a person arrested in
connection with an offence or a person placed under preventive detention as provided
under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be
breached under any situation. Non-compliance of this constitutional requirement and
statutory mandate would lead to the custody or the detention being rendered illegal,
as the case may be.
45. We are of the firm opinion that once this Court has interpreted the provisions of
the statute in context to the constitutional scheme and has laid down that the grounds
of arrest have to be conveyed to the accused in writing expeditiously, the said ratio
becomes the law of the land binding on all the courts in the country by virtue of Article
141 of the Constitution of India.
48. It may be reiterated at the cost of repetition that there is a significant difference in
the phrase “reasons for arrest” and “grounds of arrest”. The “reasons for arrest” as
indicated in the arrest memo are purely formal parameters viz. to prevent the accused
Page No.# 5/10person from committing any further offence; for proper investigation of the offence; to
prevent the accused person from causing the evidence of the offence to disappear or
tampering with such evidence in any manner; to prevent the arrested person for
making inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the court or to the
investigating officer. These reasons would commonly apply to any person arrested on
charge of a crime whereas the “grounds of arrest” would be required to contain all
such details in hand of the investigating officer which necessitated the arrest of the
accused. Simultaneously, the grounds of arrest informed in writing must convey to the
arrested accused all basic facts on which he was being arrested so as to provide him
an opportunity of defending himself 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.”
8. In respect of old section 50 A of the CrPC (new Section 48 of the BNSS 2023),
Mr. Bora relied upon Vihaan Kumar (supra), where it has been held as under–
“3. The purpose of inserting Section 50A of the CrPC, making it obligatory on the person
making arrest to inform about the arrest to the friends, relatives or persons nominated by the
arrested person, is to ensure that they would able to take immediate and prompt actions to
secure the release of the arrested person as permissible under the law. The arrested person,
because of his detention, may not have immediate and easy access to the legal process for
securing his release, which would otherwise be available to the friends, relatives and such
nominated persons by way of engaging lawyers, briefing them to secure release of the
detained person on bail at the earliest. Therefore, the purpose of communicating the grounds
of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a
formality but to enable the detained person to know the reasons for his arrest but also to
provide the necessary opportunity to him through his relatives, friends or nominated persons
to secure his release at the earliest possible opportunity for actualising the fundamental right
to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement
of communicating the grounds of arrest in writing is not only to the arrested person, but also
to the friends, relatives or such other person as may be disclosed or nominated by the arrested
person, so as to make the mandate of Article 22(1) of the Constitution meaningful and
Page No.# 6/10effective failing which, such arrest may be rendered illegal.
9. In Vihaan Kumar (supra), it is further held as under:
21. Therefore, we conclude:
a) The requirement of informing a person arrested of grounds of arrest is a mandatory
requirement of Article 22(1);
b) The information of the grounds of arrest must be provided to the arrested person in
such a manner that sufficient knowledge of the basic facts constituting the grounds is
imparted and communicated to the arrested person effectively in the language which
he understands. The mode and method of communication must be such that the object
of the constitutional safeguard is achieved;
c) When arrested accused alleges non-compliance with the requirements of Article 22(1),
the burden will always be on the Investigating Officer/Agency to prove compliance with
the requirements of Article 22(1);
d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the
accused guaranteed by the said Article. Moreover, it will amount to a violation of the
right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-
compliance with the requirements of Article 22(1) vitiates the arrest of the accused.
Hence, further orders passed by a criminal court of remand are also vitiated. Needless
to add that it will not vitiate the investigation, charge sheet and trial. But, at the same
time, filing of chargesheet will not validate a breach of constitutional mandate under
Article 22(1);
e) When an arrested person is produced before a Judicial Magistrate for remand, it is the
duty of the Magistrate to ascertain whether compliance with Article 22(1) and other
mandatory safeguards has been made; and
f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith
order the release of the accused. That will be a ground to grant bail even if statutory
restrictions on the grant of bail exist. The statutory restrictions do not affect the power
of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is
established.
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25. A contention has been raised in the written argument that the grounds of arrest were
incorporated in the remand report. This contention has been raised for the first time in written
submissions before this Court. This is not pleaded in the reply filed before the High Court and
this Court. The police submit a remand report before the learned Magistrate for seeking
remand without serving a copy thereof to the arrestee. The reason is that the Police cannot
divulge the details of the investigation to the accused till the final report is filed. Mentioning
the grounds of arrest in the remand report is no compliance with the requirement of informing
the arrestee of the grounds of arrest.
26. The stand taken before the High Court was that the appellant’s wife was informed
about the arrest. Information about the arrest is completely different from the grounds of
arrest. The grounds of arrest are different from the arrest memo. The arrest memo
incorporates the name of the arrested person, his permanent address, present address,
particulars of FIR and Section applied, place of arrest, date and time of arrest, the name of the
officer arresting the accused and name, address and phone number of the person to whom
information about arrest has been given. We have perused the arrest memo in the present
case. The same contains only the information stated above and not the grounds of arrest. The
information about the arrest is completely different from information about the grounds of
arrest. Mere information of arrest will not amount to furnishing grounds of arrest.”
10. Mr. Phukan has prayed for calling the Case Diary. According to Mr. Phukan, no
illegality has been committed by the authority. He submitted that if this Court goes
through the Case Diary, everything will be clear.
11. I have considered the submissions made by the learned counsel of both sides.
12. At this stage, a brief visit to Section 47 and 48 of the BNSS, 2023 would be
fruitful, which reads as under:
Section 47. 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
Page No.# 8/10accused 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.
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 nominated by the arrested person for the purpose of giving such
information and also to the designated police officer in the district.
(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.
13. When an arrested person is produced before a Judicial Magistrate for
remand, it is the duty of the Magistrate to ascertain whether compliance of Article 22
(1) of the Constitution of India was complied with. Because its non-compliance
renders the arrest illegal and therefore, the arrested person cannot be remanded after
arrest.
14. The very purpose of insertion of Section 48 of the BNSS, 2023 is to inform the
arrested person or his relatives or friends or persons nominated by him, so that they
would be able to take immediate and prompt action to secure the release of the
arrested person as permissible under the law.
15. The wife of the present petitioner was served with a Notice informing about the
arrest of her husband but the said Notice did not inform her about the reason for
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which he was arrested. Article 22(1) and 22(5) of the Constitution of India prescribes
that when a person is arrested in a case, he must be informed about the grounds of
his arrest and that too in writing. The requirement to communicate the grounds of
arrest or the ground of detention in writing to a person arrested in an offence, as
provided under Article 22(1) and 22(5) of the Constitution of India is sacrosanct and
cannot be breached under any situation.
16. The opinion, of the learned Chief Judicial Magistrate Sribhumi, that since the
petitioner had filed a bail application in the court, it was sufficient to hold that the
petitioner had the full knowledge about the case for which he was arrested, is an
unacceptable and unreasonable proposition. A court of law is not entitled to presume
anything if it is not allowed by the statute. The judgment of the Supreme Court in
Vihaan Kumar (supra) was relied upon by the petitioner before the court below. Even,
the order dated 22.02.2025 has also referred to that judgment. It appears that the
learned court below was not interested in spending valuable judicial time to read the
judgment of the Supreme Court that was delivered in Vihaan Kumar (supra), in spite
of the fact that Article 141 of the Constitution of India lays down that the law declared
by the Supreme Court of India shall be binding on all courts within the territory of
India.
17. This Court is of the opinion that at the time of arrest of the petitioner, the
provisions of law as laid down in Sections 47 and 48 of the BNSS, 2023 were not
complied with. In this way, the arrest of the petitioner also violated the constitutional
provisions as referred to above.
18. Under the aforesaid circumstances, this Court is of the opinion that the prayer
made by the petitioner must be accepted by this Court.
19. Therefore, the bail application of the petitioner is allowed.
20. The petitioner Mahbubul Hoque who arrested in connection with Patharkandi P.S.
Case No.54/2025 shall be released on bail of ₹30,000/- with a surety of like amount to
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the satisfaction of the learned Chief Judicial Magistrate, Sribhumi (erstwhile
Karimganj).
With the aforesaid direction, the bail application is disposed of.
JUDGE
Comparing Assistant
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