The Gauhati High Court has asked the Assam Police to ensure that when exercising the power to arrest without a warrant, the police or any other authority issues a notice under Section 47 of the BNSS, 2023 to be served on the arrestee at the time of arrest, the same should clearly state the grounds of arrest, including the full particulars of the offence, the gist of the accusations, and the basic facts necessitating the arrest.

The application before the High Court was filed under Section 483 of BNSS, 2023 by the petitioner, who has been detained behind bars since January 19, 2025.

The Single Bench of Justice Mridul Kumar Kalita held, “As the State is bound to follow the constitutional mandate as well as the statutory provisions of law, it shall ensure that in the notices furnished to an arrestee under Section 47 of the BNSS, 2023 full particulars of the offence, in which the accused has been arrested as well as the basic facts which necessitated the arrest of the accused must be provided to him forthwith at the time of his arrest.”

Advocate N Mahajan represented the Petitioner while Public Prosecutor represented the Respondent.

Factual Background

In this case, an FIR was lodged before the Officer-In-Charge of Mangaldai Police Station, alleging that information was received regarding a gang of financial fraudsters taking shelter at K.P. Residency. Accordingly, a search was made, and 4 accused persons, including the present petitioner, were arrested therefrom. It was revealed during the interrogation that the accused persons were involved in financial fraud of bank accounts and they were operating all over India.

This was the second time that the petitioner approached the High Court seeking bail. On an earlier occasion, his bail application was rejected after a perusal of the case diary.

Reasoning

The Bench relied upon the judgment of the Apex Court in Babu Singh and Others Vs. State of U.P. (1978) wherein it has been observed that an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations, “This Court is of the considered opinion that there is no bar on filing the instant bail application on the ground of violation of constitutional rights, of the petitioner, under Article 22(1) of the Constitution of India”, the Bench said while also adding, “The fundamental rights guaranteed under Article 22(1) of the Constitution of India cannot be deemed to be waived; even if an accused person does not explicitly demand these rights, the State is bound to uphold the constitutional mandate.”

On a perusal of the facts and the submission made, the Bench observed that except for the fact that the petitioner was served with the notice under Section 47 of BNSS, 2023, the prosecution side had not been able to show anything to satisfy the Court that the grounds of arrest of the petitioner in this case were communicated to him. Moreover, the notice under Section 47 of the BNSS, 2023 served on the present petitioner only contained the information regarding his arrest and the penal provisions involved in the case without disclosing the basic facts necessitating such arrest.

In light of such aspects, the Bench granted bail to the Petitioner.

Before concluding, the Bench emphasized that when an arrested person is produced before a Judicial Magistrate, the Magistrate must ascertain whether the requirements of Article 22(1) of the Constitution of India have been complied with. If there is any non-compliance with this constitutional mandate, the Magistrate cannot remand the accused to custody; the only option available in such a case is to grant bail.

“Let, a copy of this order be furnished to the Chief Secretary, Government of Assam, and the Director General of Police, Assam, to ensure that when exercising the power to arrest without a warrant, the police or any other authority issues a notice under Section 47 of the BNSS, 2023, or any other relevant provision of a special law (such as Section 52(1) of the NDPS Act, 1985). This notice, which must be served on the arrestee at the time of arrest, should clearly state the grounds of arrest, including the full particulars of the offence, the gist of the accusations, and the basic facts necessitating the arrest. Failure to comply with this requirement would render the arrest invalid due to non-compliance with the constitutional mandate”, the Bench ordered.

It further directed, “Additionally, a copy of this order shall be provided to the Director, Judicial Academy, Assam, to raise awareness among the Judicial Magistrates and other Judicial Officers handling remand proceedings. This will help ensure that they fulfill their constitutional duty by verifying compliance with Article 22 of the Constitution of India before ordering judicial or police custody of the arrested person.”

Cause Title: Sakib Choudhury v. The State of Assam (Case No.: Bail Appln./629/2025)

Appearance:

Petitioner: Advocates N Mahajan, D Bora, P K Das, A Chaudhury

Respondent: Public Prosecutor Assam

Click here to read/download Order


Gauhati High CourtJustice Mridul Kumar Kalita

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.