Gauhati High Court
Page No.# 1/8 vs The State Of Assam And Anr on 7 August, 2025
Page No.# 1/8
GAHC010267522024
2025:GAU-AS:10481
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3850/2024
ROFIQUL ISLAM
S/O FAZLUL HOQUE
R/O VILL- KALAPAKANI PART-II, BAILORCHAR
P.O. PATAMARI, P.S. DHUBRI,
IN THE DISTRICT OF DHUBRI, ASSAM, PIN-783324.
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PP, ASSAM
2:ANAR HUSSAIN (INFORMANT)
S/O LT. ABDUL GONI
R/O VILL- KALAPAKANI PART-II
BAILORCHAR
P.O. PATAMARI
P.S. DHUBRI
IN THE DISTRICT OF DHUBRI
ASSAM
PIN-783324
Advocate for the Petitioner : MR. R ISLAM, MR G U AHMED
Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, (AMICUS CURIAE, R2)
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
07.08.2025
1. Heard Mr. R. Islam, the learned counsel for the petitioner. Also heard Mr.
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K.K. Parasar, the learned Addl. Public Prosecutor, Assam for the State
respondent No.1 as well as Ms. M.K. Brown, the learned Amicus Curiae for the
respondent No.2.
2. This application under Section 483 of BNSS has been filed by the petitioner,
namely Rofiqul Islam, who has been detained behind the bars since 04.07.2023
(for more than 2 years 1 month) in connection with Special Case No. 180/2023,
corresponding to Dhubri P.S. Case No.266/2023 under Sections 365/376DA/306
of the Indian Penal Code read with Section 6 of the POCSO Act, 2012.
3. The gist of acquisition in this case is that on 30.06.2023, the father of the
victim girl had lodged an FIR before the In-charge of Bazar Nagar Police
Outpost under Dhubri Police Station, inter-alia, alleging that his minor daughter
on 29.06.2023 at around 1 p.m., had accompanied three of her friends and
went to visit Fulbari Bridge. It is alleged in the FIR that the accused persons
named in the FIR, including the present petitioner offered lift to them on bike
for dropping them in their respective homes. However, they took the victim to
Aminer Char and she was raped by accused Jahirul Islam and on the same day,
the daughter of the informant committed suicide.
4. The learned counsel for the petitioner has submitted that the petitioner is
seeking bail mainly on two grounds, namely, that no grounds of arrest were
communicated to him when he was arrested in connection with the aforesaid
case as well as on the ground of prolonged incarceration.
5. The learned counsel for the petitioner has submitted that though the
notice under Section 50 of the Code of Criminal Procedure, 1973 was served on
the petitioner at the time of his arrest, however, the said notice did not contain
any ground of arrest. Neither did it contain the basic facts which necessitated
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his arrest in connection with the aforesaid case. He submits that the notice only
contains information regarding the police station case number as well as the
penal provisions involved in the case. Hence, he submits that there is violation
of the fundamental rights of the petitioner guaranteed under Article 22(1) of the
Constitution of India. In support of his submission, the learned counsel for the
petitioner has cited the ruling of the Apex Court in the case of Prabir
Purkayastha Vs. State (NCT) of Delhi, reported in (2024) 8 SCC 254 as
well as Vihaan Kumar Vs. State of Haryana and Another, reported in
2025 SCC OnLine SC 269.
6. The learned counsel for the petitioner has also submitted that the petitioner
is seeking bail also on the ground of prolonged incarceration. He submits that
the petitioner has been languishing behind the bars for last more than 2 years 1
month. However, till date out of 40 listed prosecution witnesses only 13 have
been examined and considering the pace at which the trial is progressing, it is
unlikely that it would culminate soon. He also submits that the prolonged
incarceration of the petitioner has infringed his fundamental rights guaranteed
to him under Article 21 of the Constitution of India and on that count he is
entitled to get bail. In support of his submission, the learned counsel for the
petitioner has cited a ruling of the High Court of Bombay in the case of
Digambar Uddhav Supekar Vs. State of Maharashtra (order dated
16.10.2024 passed in Bail Application No.3284/2024).
7. On the other hand, the learned Addl. Public Prosecutor has vehemently
opposed the grant of bail to the petitioner on the ground that there are
sufficient incriminating materials in the record against the present petitioner and
some of the material witnesses are yet to be examined. He also submits that
the grounds of arrest were communicated to the petitioner at the time of his
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arrest as is apparent from the endorsement made in the case diary to that effect
by the Investigating Officer. He also submits that in the order dated 05.07.2023
passed by the learned Special Judge (POCSO), Dhubri, it is mentioned that the
grounds of arrest were communicated to the petitioner, after he was arrested.
He submits that the requirement of furnishing written grounds of arrest is there
only from the date of the judgment of the Apex Court in the case of Pankaj
Bansal Vs. Union of India, reported in (2024) 7 SCC 576, as has been
clarified by the Apex Court in the case of Ram Kishor Arora Vs. Directorate
of Enforcement, reported in (2024) 7 SCC 599.
8. Ms. M.K. Brown, learned Amicus Curiae for the respondent No.2 also
submits similar to that of the learned Addl. Public Prosecutor and hence,
opposed the grant of bail to the petitioner at this stage. She submits that in the
case of Ram Kishor Arora (supra), the Apex Court has clarified that the use
of the phrase ‘henceforth’ in the judgment of Pankaj Bansal (supra) by the
Apex Court would mean that the requirement of communicating the grounds of
arrest, in writing, to the arrestee would be applicable prospectively from the
date of the judgment of the Apex Court in the case of Pankaj Bansal (supra).
She also submits that in a case where there are materials on record to indicate
that the grounds of arrest were otherwise communicated to an arrestee in case
where arrest has been made prior to the judgment of Pankaj Bansal (supra),
such communication may not be regarded as infringement of the fundamental
rights of a person guaranteed under Article 22(1) of the Constitution of India.
9. In response to the submission made by the learned Addl. Public Prosecutor
as well as the learned Amicus Curiae regarding non-requirement of furnishing
written grounds of arrest in writing in cases where such arrest was made prior
to the judgment of Pankaj Bansal (supra), the petitioner’s counsel has cited
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a ruling of this Court in the case of Rafiqul Hoque alias Mirajul Hoque Vs.
the State of Assam (order dated 02.06.2025 passed in Bail Appln.
No.1600/2025) as well as the judgment of the Apex Court in the case of
Kanishk Sinha & Anr. Vs. State of West Bengal and Anr., reported in
(2025) SCC OnLine SC 443, wherein it was observed that judicial decisions
are normally retrospective in application unless mentioned otherwise therein. He
also submits that in the decisions of the Apex Court in Prabir Purkayastha
(supra) and Vihaan Kumar (supra), there was no indication that the
requirement of furnishing written grounds of arrest to an arrestee would be
applicable prospectively.
10. I have considered the submissions made by the learned counsels for both
sides and have gone through the rulings cited by them as well as the scanned
copy of the Trial Court record, which was requisitioned in connection with this
case.
11. Article 22 of the Constitution of India mandates that no person who is
arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest nor shall he be denied the right to consult,
and to be defended by, a legal practitioner of his choice. A bare reading of the
aforesaid provision would show that it provides twofold protection to an
arrestee. Firstly, that his right to know about the grounds of arrest and secondly,
his right to consult and to be defended by a legal practitioner of his own choice.
The Apex Court in various of its landmark judgments have interpreted the
aforesaid provisions and have fortified the protection given to an arrestee by the
aforesaid provisions. The Apex Court in the case of Pankaj Bansal Vs. Union
of India(supra) has observed that the grounds of arrest in writing has to be
furnished to an arrested person, as a matter of course, without exception. The
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said provision of law was further fortified by the Apex Court in the case of
Prabir Purkayastha Vs. State (NCT) of Delhi (supra) and in the case of
Vihaan Kumar Vs. State of Haryana and Another (supra). However, the
Apex Court in the case of Ram Kishor Arora Vs. Directorate of
Enforcement (supra) has interpreted the use of the word ‘henceforth’ in the
case of Pankaj Bansal Vs. Union of India (supra) as meaning that the
requirement of furnishing the grounds of arrest in writing will be mandatory
from the date of pronouncement of the judgment in the case of Pankaj
Bansal Vs. Union of India (supra). It also observed that if the arrest has
been made before the said date, non-furnishing of the grounds of arrest, in
writing, could not be faulted with.
12. However, there has to be materials on record to show that the grounds of
arrest were otherwise communicated to the petitioner after his arrest. In the
instant case, it appears that the petitioner was arrested on 04.07.2023, i.e.,
prior to the date of the judgment in the case of Pankaj Bansal Vs. Union of
India (supra). Thus, even if we go by the interpretation given by the Apex
Court in the case of Ram Kishor Arora Vs. Directorate of Enforcement
(supra), the prosecution must show as to how the grounds of arrest were
communicated to the petitioner soon after his arrest.
13. On perusal of the scanned copy of the case diary, which is available before
this Court, it appears that there is an endorsement by the Investigating Officer
therein to the effect that the accused persons have been informed about the
grounds of arrest and their rights as per Section 50 and 50A of Cr.P.C. It
appears that in the notice issued to the petitioner under Section 50 of Cr.P.C., no
grounds of arrest have been mentioned. It also appears that apart from serving
the said notice to the petitioner, there is no indication in the case diary that he
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was communicated by the Investigating Officer, either orally or through other
means, apart from notice under Section 50 Cr.P.C., about the grounds of his
arrest. Thus, this Court is of the considered opinion that even if it is agreed
that the requirement of furnishing written grounds of arrest to an arrestee
would be applicable only after the date of the judgment of the Apex Court in the
case of Pankaj Bansal Vs. Union of India (supra), the prosecution side has
failed to show as to how otherwise the grounds of arrest were communicated to
the petitioner. Thus, though this case involves heinous offences, however, this
Court is constrained to observe that the fundamental rights guaranteed to the
petitioner under Article 22(1) of the Constitution of India has been violated in
this case. He is, therefore, entitled to get bail on that count only.
14. For the above reasaons, the above named petitioner is allowed to go on
bail of Rs. 50,000/- (Rupees Fifty Thousand) with two sureties of like amount
subject to the satisfaction of the learned Special Judge (POCSO), Dhubri with
the following conditions:
i. That the petitioner shall cooperate in the trial of Special Case
No. 180/2023, which is pending in the Court of learned Special
Judge (POCSO), Dhubri;
ii. That the petitioner shall appear before the Trial Court as and
when so required by the Trial Court;
iii. That the petitioner 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 in the trial pending
against the present petitioner;
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iv. That the petitioner shall not leave the jurisdiction of the Trial
Court without prior permission of the Trial Court and when such
leave is granted by the Trial Court, the petitioner shall submit his
leave address and contact details during such leave before the Trial
Court; andv. That the petitioner shall not commit any similar offence while
on bail.
15. With the above observation, this bail application is accordingly, disposed of.
JUDGE
Comparing Assistant