Gauhati High Court
Page No.# 1/ vs The State Of Assam on 19 August, 2025
Page No.# 1/10
GAHC010150892025
2025:GAU-AS:11025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2236/2025
SURAT JAMAL ALIAS KALU AND ANR
S/O PHULCHAND MIYA
R/O IVLL- MONDIA 1 NO. BORDOLONI P.S. B AGHBOR
DIST. BARPETA, ASSAM
2: RAFIKUL ISLAM @ GENDA
S/O FULSAN ALI
R/O VILL- DIGIRPAM MANDIA
P.S. B AGHBOR
DIST. BARPETA
ASSA
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. A AHMED, F KHATUN,MR. S UDDIN,MR A ALAM,MR. A A
MONDAL
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 19-08-2025
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Heard Mr. A. Ahmed, the learned counsel for the petitioners. Also heard
Mr. P.S. Lahakar, the learned Additional Public Prosecutor appearing on behalf of
the State respondent.
2. This application is filed under Section 483 of BNSS, 2023 praying for grant
of bail to the accused/petitioners, who have been arrested in connection with
Sessions Case No. 109/2023 arising out of Jalukbari P.S. Case No. 219/2022,
under Sections 460/392/302 of IPC which is pending before the learned
Additional District & Sessions Judge No. 2 Kamrup (M).
3. Scanned copy of the TCR has already been received.
4. It is submitted by Mr. Ahmed, the learned counsel for the petitioners that
both the petitioners are innocent and they have not committed any such offence
as alleged in the FIR. The petitioner no. 1 got arrested in connection with this
case on 02.03.2023 and petitioner no. 2 was arrested on 06.03.2023. The
petitioner no. 2 is shown arrested in connection with this case and there was no
recovery from the possession of the two petitioners. Both the petitioners are
under long incarceration for more than 2 years 5 months in custody and
presently the case is at the stage of evidence and out of 19 cited witnesses, 10
nos. of witnesses have already been examined by the prosecution. He further
submitted that the last prosecution witness was examined in the month of
February, 2025 and thereafter no prosecution witness could be examined till
date. Thus the completion of the trial will take considerable period and hence
considering the period of long incarceration both the petitioners may be
enlarged on bail. However, they will regularly appear before the learned Court
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below.
5. Mr. Ahmed further submitted that no grounds of arrest was communicated
to the petitioner no. 1 at the time of his arrest and in that regard no notice u/s
50 and 50A Cr.PC was issued to the accused/petitioner no. 2 who was shown
arrested in connection with this case. Further, he submitted that though the
notice u/s 50 and 50A Cr.PC was furnished to the petitioner no. 1 at the time of
his arrest but no grounds of arrest was communicated to the petitioner, which is
a mandatory requirement. The non-compliance of this requirement constitutes a
violation of Articles 21 and 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 in writing and copy of such
written grounds of arrest should be furnished to the accused/person as a matter
of course and without any exception. Non-supply of the written grounds of
arrest to the arrested accused/petitioners would vitiate the arrest even if the
case has been charge-sheeted.
6. Mr. Ahmed further submitted that it is a settled law that the accused should
be provided with the grounds of arrest as per mandate of Article 22(1) of
Constitution and even in a case of person shown arrested in a specific case, the
Arresting Authority is the duty bound to furnish the grounds of arrest to such an
arrestee and also to serve a notice u/s 47 & 48 BNSS corresponding to section
50 & 50A of Cr.PC. In that context also Mr. Ahmed relied with an order of
coordinate Bench passed in Bail Application No. 427/2025 dated 30.07.2025
wherein also it is observed that in case of a shown arrest also the Investigating
Officer is duty bound to communicate the grounds of arrest to the accused. He
also relied on another order of the Coordinate Bench in Bail Application No.
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892/2025 dated 11.06.2025 and emphasized on para 9 of the said judgment
which read as under:-
“9. In Directorate of Enforcement … Versus Subhash Sharma 2025 SCC OnLine SC 240, the
Apex Court has held as under:
“8. Once a Court, while dealing with a bail application, finds that the fundamental rights of the
accused under Articles 21 and 22 of the Constitution of India have been violated while arresting
the accused or after arresting him, it is the duty of the Court dealing with the bail application to
release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the
duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the
Constitution.”
7. Accordingly, it is submitted by Mr. Ahmed that considering the period of
long incarceration and also considering the fact that both the petitioners were
not provided with the grounds of arrest, the prayer of bail of the present
petitioners may be considered and the petitioners will abide by any terms and
conditions imposed on them, if they are granted with the privilege of bail.
8. Mr. Lahakar, the learned Additional Public Prosecutor, submitted in this
regard that there are sufficient incriminating materials against the present
petitioners and case is of serious in nature wherein the husband of the
informant was killed by the dacoits and these two petitioners are also involved
in the alleged offence. He further submitted that out of 19 nos. of prosecution
witnesses 10 nos. of witnesses have already been examined and can be
expected that within a reasonable period there will be completion of trial.
Further, Mr. Lahakar submitted that the petitioner no. 2 was shown arrested in
this case and he was fully aware about the grounds of arrest and the petitioner
no. 1 who was arrested in connection with this case was furnished with Notice
u/s 50 & 50A Cr.PC. However, the grounds of arrest was not mentioned in detail
in writing.
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9. He further submitted that the judgment of Pankaj Bansal Vs. Union of
India & Ors., reported in (2024) 7 SCC 576 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 grounds of
arrest. Thus, the judgment itself speaks that the judgment is of prospective in
nature wherein the written communication of grounds 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 furnishing the same in writing could be faulted
with.”
10. 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 Vs. State (NCT of Delhi), reported in (2024) 8 SCC
254. 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 Vs. State of
Haryana, reported in 2025 SCC OnLine SC 269, 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
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a person arrested with the interests of the society. Therefore, the police should
always scrupulously comply with the requirements of Article 22.”
11. 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.
12. Mr. Lahakar accordingly submitted that prior the case of Pankaj Bansal
there was no direction from the Hon’ble Apex Court for providing the grounds of
arrest in writing or in detail form and the use of word “henceforth” clearly
indicates that the judgment will have the prospective effect.
13. In that regard it is submitted by Mr. Ahmed, the learned counsel for the
petitioner that it is not a case of “caught red handed” and both the petitioners
were arrested on suspicion subsequent to the alleged offence and hence it is
the duty bound by the I/O to provide them the grounds of arrest. It is submitted
that regarding the prospective and retrospective nature of the order the Hon’ble
High Court at Karnataka, Bengaluru has discussed in detail while passing the
order in Petition No. 9302/2025. Further, the matter is also pending before the
Division Bench of the Hon’ble Supreme Court.
14. After hearing the submissions made by the learned counsel for both sides,
I have also perused the scanned copy of the TCR and the other annexures filed
with the petition and the evidence so far recorded by the learned Trial Court
below. It is an admitted fact that both the accused/petitioners are behind the
bars since more than 2 years 5 months and petitioner no. 2 was also shown
arrested in connection with this case. It is also admitted position that the
petitioners were subsequently arrested for the alleged offence and it is not a
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case of “caught red handed” and thus it is the duty of the I/O to provide all the
grounds of arrest to the petitioners. It is also settled proposition of law that
every judgment passed by the constitutional Court always have a retrospective
effect unless the judgment itself specifically speaks that the judgment will
operate prospectively. In that context, the 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
true 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.”
15. The Hon’ble Supreme Court in the case of Directorate of Enforcement
Vs. Subhash Sharma, reported in 2025 SCC OnLine 240, in paragraph No.
8 of the judgment, has observed that ” once a Court, while dealing with a bail
application, finds that the fundamental rights of the accused under Articles 21
and 22 of the Constitution of India have been violated while arresting the
accused or after arresting him, it is the duty of the Court dealing with the bail
application to release the accused on bail. The reason is that the arrest in such
cases stands vitiated. It is the duty of every Court to uphold the fundamental
rights guaranteed under Articles 21 and 22 of the Constitution.”
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16. Further, it is a settled proposition of law that the High Courts or the
Subordinate Courts should decide the matters on the basis of law as it stands
and unless specifically directed by the Hon’ble Supreme Court to await an
outcome of a reference or review petition as the case may be. In that context
also, a decision of Hon’ble Supreme Court can be relied on which was reported
in 2023 SCC OnLine SC 114 (Union Territory of Ladakh Vs. Jammu and
Kashmir National Conference), wherein in paragraph No. 35 of the
judgment, it has been held as under:
“35. We are seeing before us judgments and orders by High Courts not deciding cases
on the ground that the leading judgment of this Court on this subject is either referred
to a larger Bench or a review petition relating thereto is pending. We have also come
across examples of High Courts refusing deference to judgments of this Court on the
score that a later Coordinate Bench has doubted its correctness. In this regard, we lay
down the position in law. We make it absolutely clear that the High Courts will proceed
to decide matters on the basis of the law as it stands. It is not open, unless specifically
directed by this Court, to await an outcome of a reference or a review petition, as the
case may be. It is also not open to a High Court to refuse to follow a judgment by
stating that it has been doubted by a later Coordinate Bench. In any case, when faced
with conflicting judgments by Benches of equal strength of this Court, it is the earlier
one which is to be followed by the High Courts, as held by a 5-Judge Bench in National
Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805. The High Courts, of
course, will do so with careful regard to the facts and circumstances of the case before
it.”
17. In the instant case as discussed above it is seen that there was no mention
of grounds of arrest as well as in the notice issued to the present
accused/petitioner no. 1 and in the same time no notice was served on the
accused/petitioner no. 2 who was shown arrest in connection with this case.
Thus, it is seen that there is clear violation of mandate of Article 22(1) of
Constitution of India wherein the accused/petitioners were not provided with
the grounds of arrest at the time of their arrest. In para 31 of the judgment of
Vihan Kumar (supra) the Hon’ble Supreme Court has held that all Courts,
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including the High Court, have a duty to uphold fundamental rights. Once a
violation of a fundamental right under Article 22(1) was alleged, it was the duty
of the High Court to go into the said contention and decide in one way or the
other. For ready reference, paragraph No. 31 of the said judgment read as
under:
“31. The learned Single Judge, unfortunately, has equated information given regarding
the appellant’s arrest with the grounds of arrest. The observation that the allegation of
non- supply of the grounds of arrest made by the appellant is a bald allegation is
completely uncalled for. All courts, including the High Court, have a duty to uphold
fundamental rights. Once a violation of a fundamental right under Article 22(1) was
alleged, it was the duty of the High Court to go into the said contention and decide in
one way or the other. When a violation of Article 22(1) is alleged with respect to
grounds of arrest, there can be possible two contentions raised: (a) that the arrested
person was not informed of the grounds of arrest, or (b) purported information of
grounds of arrest does not contain any ground of arrest. As far as the first contention
is concerned, the person who is arrested can discharge his burden by simply alleging
that grounds of arrest were not informed to him. If such an allegation is made in the
pleadings, the entire burden is on the arresting agency or the State to satisfy the court
that effective compliance was made with the requirement of Article 22(1). Therefore,
the view taken by the High Court is completely erroneous.”
18. In the same time it also cannot be denied that both the accused/petitioners
are in custody since more than 2 years 5 months and 9 nos. of witnesses still
remained to be examined by the prosecution and thus considerable period will
be taken for completion of the entire trial. So considering both the aspects of
the case i.e. long incarceration and the issue of non-furnishing of the grounds of
arrest, I find it a fit case to extend the privilege of bail to the
accused/petitioners.
19. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/-
(Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that
one surety has to be a government servant, to the satisfaction of the learned
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Additional Sessions Judge No. 2, Kamrup (M), the accused/petitioners, namely,
[1] Surat Jamal @ Kalu and [2] Rafikul Islam @ Genda be enlarged on bail,
subject to the following conditions:
(i) that the petitioners shall appear before the Court of learned
Additional Sessions Judge No. 2, Kamrup (M), on each and every
date to be fixed by the Court;
(ii) that the petitioners shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him/them from disclosing such
facts to the Court or to any police officer;
(iii) that the petitioners shall submit his Aadhar Card and PAN Card
before learned Additional Sessions Judge No. 2, Kamrup (M).
(iv) that the petitioners shall not leave the jurisdiction of the learned
Additional Sessions Judge No. 2, Kamrup (M), without prior
permission.
20. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant