Gauhati High Court
Page No.# 1/ vs The State Of Assam on 17 June, 2025
Page No.# 1/11
GAHC010123022025
2025:GAU-AS:7682
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1878/2025
SAIDUR RAHMAN
S/O- JABAR ALI,
R/O- OJA GAON,
P.S DHULA, DIST- DARRANG, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY PP ASSAM
Advocate for the Petitioner : SHAHAB UDDIN, F KHATUN,MR A ALAM,MR. A A
MONDAL,MR. M A CHOUDHURY,MR. A AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 17.06.2025
Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. P.
S. Lahkar, learned Additional Public Prosecutor for the State respondent.
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2. This is an application under Section 483 of BNSS, 2023 praying for grant of
bail to the accused/petitioner, who has been arrested in connection with
Sessions Case No. 109/2023, arising out of Jalukbari P.S. Case No. 219/2022,
under Section 460/392/302 of Indian Penal Code, pending before the Court of
learned Additional District & Sessions Judge No. 2, Kamrup(M), Guwahati.
3. Scanned copy of the Trial Court Record has already been received and I
have perused the same.
4. It is submitted by Mr. Ahmed, learned counsel for the petitioner, that the
earlier bail application for the present accused/petitioner was rejected by this
Court vide Order dated 31.05.2024 in Bail Appln. No. 1425/2024 considering
only the nature and gravity of the offence. But the present petitioner is innocent
and he is no way connected in the alleged offence. Further Mr. Ahmed, learned
counsel for the petitioner, raised the issue that the accused/petitioner was
arrested on 25.02.2023 and he was produced before the Court only on
28.02.2023 which is reveal from his forwarding report as well as from the
Charge-Sheet filed in the present case. Accordingly, he submitted that it is a
settled principle of law that any person arrested in connection with any case
should be produced before the nearest Magistrate within 24 hours. But, here in
the instant case, it is the admitted position that the accused/petitioner was
produced before the Magistrate only on 28.02.2023, i.e. after 3 (three) days of
his arrest on 25.02.2023, which may be a good ground for considering his bail
prayer. In that context, he also relied on a decision rendered by the co-ordinate
Bench of this Court passed in Bail Appln. No. 1662/2025 and he emphasized
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on paragraph Nos. 15, 16 & 17 of the said judgment wherein the co-ordinate
Bench of this Court had expressed the view that non-production of the accused
within 24 hours before the Magistrate amounts to violation of Article 22(2) of
Constitution of India and his fundamental right to liberty guaranteed under
Article 21 of the Constitution of India is also vitiated and that count the
petitioner is entitled to go on bail.
5. Mr. Ahmed also raised the issue of non-furnishing of the ground of arrest
to the present accused/petitioner at the time of his arrest and accordingly he
submitted that neither in the Arrest Memo nor in the Notice under Section 50
Cr.P.C., the petitioner was communicated with the grounds of arrest which is
mandatorily required and non-compliance of the same is in violation of Articles
21 & 22(1) of the Constitution of India. He accordingly submitted that all the full
particulars of the offence, which is alleged to have been committed by the
accused, should be informed to him at the time of his arrest and otherwise it
would be against the mandate of the Constitution of India as well as the
statutory provisions which would vitiate the arrest itself.
6. In that context, Mr. Ahmed, learned counsel for the petitioner, cited the
following decisions:
(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC
OnLine SC 269.
(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in
(2024) 8 SCC 254.
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7. Mr. Ahmed further submitted that the accused/petitioner got arrested in
connection with this case on 25.02.2023 and in spite of languishing in jail hajot
for more than 3 (three) years, the trial is not yet completed and some more
witnesses are yet to be recorded by the prosecution. So, considering all these
aspect of the case, the prayer for present petitioner may be considered and his
period of long incarceration also may be considered. The petitioner is ready to
provide genuine surety and will abide by any condition if he is granted with the
privilege of bail.
8. Mr. Lahkar, learned Additional Public Prosecutor, submitted in this regard
that in the present case, the present petitioner, along with the co-accused
persons, had brutally murdered the victim and after committing murder, the
present accused/ petitioner fled away and he got arrested in connection with
this case only on 25.02.2023 from Bengaluru and obtaining the order of transit
remand, the accused/petitioner was produced before the Court of learned
Magistrate on 28.03.2025. So, there is no intentional delay or default on the
part of the investigating officer for production of the accused/petitioner before
the Magistrate after lapse of 24 hours as required under Section 57 of BNSS.
9. Mr. Lahkar further submitted that non-communication of grounds of arrest
in written was first considered by the Hon’ble Apex Court in case of Pankaj
Bansal Vs. Union of India & Ors., reported in (2024) 7 SCC 576, wherein
it has been held that the copy of the written ground of arrest should be
furnished to the arrested accused person as a matter of course and without any
exception. He further emphasized on paragraph No. 35 of the said judgment,
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which read as under:
“35. On the above analysis, to give true meaning and purpose to the constitutional
and the statutory mandate of Section 19(1) of the Act of 2002 of informing the
arrested person of the grounds of arrest, we hold that it would be necessary,
henceforth, that a copy of such written grounds of arrest is furnished to the arrested
person as a matter of course and without exception. The decisions of the Delhi High
Court in Moin Akhtar Qureshi (supra) and the Bombay High Court in Chhagan
Chandrakant Bhujbal (supra), which hold to the contrary, do not lay down the correct
law. In the case on hand, the admitted position is that the ED’s Investigating Officer
merely read out or permitted reading of the grounds of arrest of the appellants and
left it at that, which is also disputed by the appellants. As this form of communication
is not found to be adequate to fulfil compliance with the mandate of Article 22(1) of
the Constitution and Section 19(1) of the Act of 2002, we have no hesitation in holding
that their arrest was not in keeping with the provisions of Section 19(1) of the Act of
2002. Further, as already noted supra, the clandestine conduct of the ED in proceeding
against the appellants, by recording the second ECIR immediately after they secured
interim protection in relation to the first ECIR, does not commend acceptance as it
reeks of arbitrary exercise of power. In effect, the arrest of the appellants and, in
consequence, their remand to the custody of the ED and, thereafter, to judicial
custody, cannot be sustained.”
10. He further submitted that the judgment of Pankaj Bansal (supra) was
passed by the Division Bench of the Hon’ble Supreme Court on 03.10.2023
wherein it was considered that henceforth there should be written
communication of the ground of arrest. Thus, the judgment itself speaks that
the judgment is of prospective in nature wherein the written communication of
ground of arrest has to be made to any accused person after arrested on
03.10.2023. In the case of Ram Kishor Arora Vs. Directorate of
Enforcement, reported in 2023 8 Supreme 514, also, the Hon’ble Apex
Court reiterated the same facts in paragraph No. 23 of the said judgment,
wherein it is expressed the view that ” non-furnishing of grounds of arrest in
writing till date of pronouncement of judgment in Pankaj Bansal case could
neither be held to be illegal nor the action of the concerned officer in not
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furnishing the same in writing could be faulted with.”
11. Mr. Lahkar further submitted that the ratio laid down in Pankaj Bansal
(supra) has also been considered and affirmed by the Hon’ble Supreme Court in
Prabir Purkayastha (supra). In Paragraphs 45 and 51 of the said judgment,
the Apex Court reiterated that the principles enunciated in Pankaj Bansal
(supra) would govern the issue. The said ratio has further been followed in
Vihaan Kumar (supra), wherein a similar view has been expressed.
Specifically, in Paragraph 15 of the judgment in Vihaan Kumar (supra), it has
been observed that “although there is no requirement to communicate the
ground of arrest in writing, what is stated in paragraphs 42 & 43 of the decision
in the case of Pankaj Bansal are suggestion that merit consideration.”
Accordingly, it held that “the police have to balance the rights of a person
arrested with the interests of the society. Therefore, the police should always
scrupulously comply with the requirements of Article 22.”
12. Citing the above referred judgments, Mr. Lahkar, learned counsel,
submitted that the accused/petitioner is not entitled to be released on bail only
on the ground of non-communication of grounds of arrest in written form.
13. Furthermore, Mr. Lahkar placed reliance on the recent judgment of the
Hon’ble Supreme Court passed in Kasireddy Upender Reddy Vs. State of
Andhar Pradesh & Ors. [Criminal Appeal No. 2808 of 2025, decided on
23.05.2025], wherein it has been held by the Hon’ble Supreme Court that if a
person arrested on a warrant, the grounds for reasons for the arrest is the
warrant itself. If the warrant is read over to him, that is sufficient compliance
with the requirement that he should be informed of the grounds of his arrest.
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Mr. Lahkar accordingly relied on paragraph Nos. 27, 28, 29 & 36 of the said
judgment, which read as under:
“27. The object underlying the provision that the grounds of arrest should be
communicated to the person arrested has been very succinctly explained in Vihaan
Kumar (supra). On learning about the grounds for arrest, the person concerned will be
in a position to make an application before the appropriate Court for bail, or move the
High Court for a writ of habeas corpus. Further, the information will enable the
arrested person to prepare his defence in time for the purposes of his trial. For these
reasons, it has been provided by the Constitution that, the ground for the arrest must
be communicated to the person arrested as soon as possible.
28. For the purposes of Clause (1) of Article 22, it is not necessary for the authorities
to furnish full details of the offence. However, the information should be sufficient to
enable the arrested person to understand why he has been arrested. The grounds to
be communicated to the arrested person should be somewhat similar to the charge
framed by the Court for the trial of a case.
29. The rule in Article 22(1) that a person upon being arrested must be informed of
the grounds of arrest is similar to, though not exactly identical with, the rules
prevailing in England and in United States of America. The rule prevailing in England is
that
“in normal circumstances an arrest without warrant either by a policeman or by
a private person can be justified only if it is an arrest on a charge made known
to the person arrested”; (per Viscount Simon L.C. in — ‘Christie v. Leachinsky
(1947 AC 573 at p. 586(F).”
30. It is a rule of common law and is described in different languages by different
authorities, but the meaning is the same; the arrested person must be told for what
he is arrested or be informed of the cause of his arrest. In the United States the
accused has the constitutional right “to be informed of the nature and cause of the
accusation”; see 6th Amendment to the American Constitution. In Hooper v. Lane,
(1857) 6 HLC 443 : 10 ER 1368 (G), one of the reasons for the rule was said to be
that the person arrested should know whether he is or is not bound to submit to the
arrest. In Christie v. Leachinsky reported in (1947) AC 573 Lord Simonds observed at
page 591 as thus:
“Putting first things first, I would say that it is the right of every citizen to be
free from arrest unless there is in some other citizen, whether a constable or
not, the right to arrest him. And I would say next that it is the corollary of the
right of every citizen to be thus free from arrest that he should be entitled to
resist arrest unless that arrest is lawful. How can these rights be reconciled with
the proposition that he may be arrested without knowing why he is arrested?
……. Blind, unquestioning obedience is the law of tyrants and of slaves: it does
not yet flourish on English soil”.
36. If a person is arrested on a warrant, the grounds for reasons for the arrest is the
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warrant itself; if the warrant is read over to him, that is sufficient compliance with the
requirement that he should be informed of the grounds for his arrest. If he is arrested
without a warrant, he must be told why he has been arrested. If he is arrested for
committing an offence, he must be told that he has committed a certain offence for
which he would be placed on trial. In order to inform him that he has committed a
certain offence, he must be told of the acts done by him which amounts to the
offence. He must be informed of the precise acts done by him for which he would be
tried; informing him merely of the law applicable to such acts would not be enough.
(See: Vimal Kishore Mehrotra (supra))”
14. Accordingly, Mr. Lahkar, learned Additional Public Prosecutor, submitted
that it is not at all a fit case to allow the accused/petitioner to go on bail and he
further submitted that the petitioner had to be arrested from Bengaluru and
thus, there is every probability of his absconding if he is enlarged on bail. Thus,
he submitted that considering this aspect of the case, vis-à-vis the gravity of the
offence, the bail prayer of the present accused/petitioner may be rejected at
this stage.
15. On the other hand, Mr. Ahmed, learned counsel for the petitioner, relied on
a decision of co-ordinate Bench of this Court passed in Bail Appln. No.
1173/2025, wherein the issue of non-communication of grounds of arrest was
also considered and considering the judgment passed by the Hon’ble Supreme
Court and also considering the fact that the judgment and order of
Constitutional Court is to be considered having retrospective effect unless it is
specifically mentioned in the judgment that the same would have prospective
effect. Mr. Ahmed accordingly submitted that this issue of communication of
ground of arrest is well settled long back in the year 1962 and as such, the
decision of Hon’ble Apex Court in case of Ram Krishna Arora (supra) cannot
be relied on to reject the prayer for bail of the present accused/petitioner. In
Page No.# 9/11that context, he relied on paragraph No. 6 of the order passed by the co-
ordinate Bench of this Court, passed in Bail Appln. No. 1173/2025, which
read as under:
“6. In reply to the submission of Mr. Borthakur, learned Additional Public Prosecutor,
Mr. Ahmed, learned counsel for the accused, by referring to a decision of Hon’ble
Supreme Court in the case of Harikishan vs. The State of Maharashtra, in Criminal
Appeal No. 189/1961, submits that the law in respect of communication of the ground
of arrest is well settled long back in the year 1962 and as such, the decision of Hon’ble
Supreme Court in the case of Ram Kishor Arora (Supra) cannot be relied upon in
refusing to give effect to the order of Hon’ble Supreme Court in the cases of Prabir
Purkayastha (Supra) and Vihaan Kumar (Supra) retrospectively.”
16. After hearing the submissions made by the learned counsels for both
sides, I have also perused the case record and the other annexures filed along
with the petition. There is no dispute that the accused/petitioner is behind the
bar for more than 2 (two) years in the present case and from the record it is
seen that the ground of arrest was also not communicated to him while issuing
the Notice under Section 50 as well as the Arrest memo. It is also settled
proposition of law that every judgment passed by the Constitutional Court
always has the retrospective effect unless the judgment itself specifically speaks
that the judgment will operate prospectively. In that context, a decision of
Hon’ble Supreme Court passed in Special Leave Petition (Criminal) Nos.
8609-8614 of 2024 (Kanishk Sinha & Anr. Vs. The State of West
Bengal & Anr. can be relied on, wherein in paragraph No. 3 of the judgment, it
has been observed as under:
“…
Now the law of prospective and retrospective operation is absolutely clear. Whereas a
law made by the legislature is always prospective in nature unless it has been
specifically stated in the statute itself about its retrospective operation, the reverse is
Page No.# 10/11true for the law which is laid down by a Constitutional Court, or law as it is
interpretated by the Court. The judgment of the Court will always be retrospective in
nature unless the judgment itself specifically states that the judgment will operate
prospectively. The prospective operation of a judgment is normally done to avoid any
unnecessary burden to persons or to avoid undue hardships to those who had bona
fidely done something with the understanding of the law as it existed at the relevant
point of time. Further, it is done not to unsettle something which has long been
settled, as that would cause injustice to many.”
17. But, from the judgment, as relied by the learned Additional Public
Prosecutor, it has been held by the Hon’ble Supreme Court that if a person is
arrested on the warrant, the grounds for reasons for arrest is the warrant itself,
if the warrant is read over to him, that is sufficient compliance with the
requirement that he should be informed of the ground of his arrest. In the
instant case also, it is seen that the person after committing the alleged crime,
he fled away and he was arrested from outside the State on the strength of
warrant of arrest and thereafter taking the transit remand, he was produced
subsequently before the learned Trial Court below. Thus, it cannot be denied
that he was fully aware about the ground of arrest which was communicated to
him at the time of his arrest and till his production before the learned Trial Court
below. Thus, it cannot be considered that there was no compliance of Article
22(1) of the Constitution of India and from the record, it seen that the he was
very much aware about his grounds of arrest who was arrested subsequent to
the alleged commission of murder.
18. Considering the entire aspect of the case, as discussed above, and also
considering the gravity of the offence wherein a person was brutally murdered
by the accused persons and also considering the conduct of the
accused/petitioner, this Court is of the opinion that the probability of absconding
of the accused/petitioner cannot be denied at this stage. Furthermore, the
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accused/petitioner cannot claim entitlement to bail solely on the ground of non-
communication of the ground of arrest in written form, particularly, when it is
found that there is sufficient compliance of Article 22(1) of the Constitution of
India and the petitioner was otherwise made aware of the grounds of arrest. In
view of the foregoing, the prayer for bail stands rejected. The learned Trial
Court is hereby directed to expedite the trial of the case and to make all
possible efforts to conclude the trial at the earliest, preferably within a period of
6 (six) months from the date of passing of this order.
19. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant