Juber Ahmed vs The State Of Assam

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GAHC010086092026

2026:GAU-AS:7223
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1199/2026
JUBER AHMED
S/O- LATE ABUL HUSSAIN.
R/O- VILL.- PATHARIYA B BLOCK, P.S.- NILAMBAZAR, DIST.- SRIBHUMI,
ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP ASSAM
Advocate for the Petitioner : MR A HAI, MR. M AHMED
Advocate for the Respondent : PP, ASSAM,

BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
JUDGMENT & ORDER (Oral)
Date : 25.05.2026

Heard Mr. M. Ahmed, learned counsel, appearing on behalf of the accused-
applicant. Also heard Mrs. S. H. Bora, learned Addl. Public Prosecutor, representing
the State.
2. This is an application filed under Section 483 of BNSS, 2023, praying for

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granting bail to the accused-applicant in connection with Sessions Case No.
197/2025, pending before the Court of learned Addl. Sessions Judge (FTC),
Sribhumi.

3. An FIR dated 23.06.2025 was lodged by the victim women, alleging that she
was raped while she was going to her office wherein, she works as ASHA worker. It
was alleged that the accused-applicant, while she was on her way, forcibly took her
to a secluded place and raped her.

4. On receipt of the FIR, police registered the Nilambazar Police Station Case No.
86/2025. After investigation, a charge-sheet was filed against the accused-
applicant. Subsequently, charges were framed against the accused-applicant in
Sessions Case No. 197/2025, which is pending before the learned Additional
Sessions Judge (FTC), Sribhumi. The accused-applicant has been charged under
Sections 126(2)/127(2)/74/75/76/64 of the BNS, 2023.

5. The prosecution evidence has not commenced as yet.
6. The accused-applicant, on an earlier occasion, filed a bail application, i.e., Bail
Application. No. 258/2026 before this Court, which was rejected after due
consideration by this court, vide its order dated 19.02.2026.
7. TCR in the instant case has been received and on perusal, it is seen that
though 17 dates have already been given till date, no evidence has been recorded
before the Trial Court. It is seen that the accused-applicant is behind the bar for the
last 336 days.
8. Mr. Ahmed, learned counsel for the accused-applicant submits that the
accused-applicant has been falsely implicated in the instant case. He submits that
the accused-applicant is 31 years old, whereas, the victim women is 47 years old

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and the story that has been narrated in the FIR, apparently, looks like a concocted
one and the FIR has been filed with some ulterior motive. He submits that in spite
of filing of the charge-sheet and framing of charge, way back on 23.07.2025 and
17.10.2025 respectively and 17 dates have been given, no prosecution witnesses
have been examined till date before the Trial Court. He further submits that while
arresting the accused-applicant by the police authority, the police authority has not
complied with the mandates of Section 36 of BNSS, 2023 in the instant case and
therefore, in view of such violation which actually curtails the fundamental rights of
the accused-applicant under Article 21 and 22(1) of the Constitution of India, the
accused-applicant’s arrest is liable to be declared illegal and therefore, he has the
right to be released on bail on that ground alone. He submits that while arresting
the accused-applicant, though the police authority has prepared the Arrest Memo
under Section 36 of the BNSS, 2023 the Arrest Memo does not contain any
attestation either of any of his family members or any respectable person of the
locality wherein the accused-applicant was arrested. Therefore, since the statutory
compliance is not there in the instant case, the accused-applicant should be
released on bail on that ground alone.
9. Per contra , Mrs. S.H. Bora, learned Addl. P.P., submits that there is no wrong
committed by the police authority while arresting the accused-applicant in the
instant case. She submits that though there is no attestation in the Arrest Memo, a
notice under Section 48 of the BNSS, 2023 has been issued to one Mehmuda
Khatoon, at the time of his arrest. She submits that in view of the aforesaid, though
no attestation is present of any witness in the Arrest Memo prepared under Section
36 of the BNSS, 2023 no prejudice has been caused to the accused-applicant, since
aforesaid Mehmuda Khatoon, who has been named by the accused-applicant has

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been intimated about his arrest at the time of his arrest. Accordingly, the learned
APP opposes the prayer of bail of the accused-applicant.

10. On perusal of the TCR, it is seen that the Arrest Memo under Section 36 of the
BNSS, 2023 has been prepared by the police authority, however, no
attestation/signature was obtained from any of the family member of the accused-
applicant or any respectable member of the locality as required under Section 36 of
the BNSS, 2023. It is seen that the Arrest Memo has been counter-signed by the
arrested accused-applicant and the arresting officer concerned. It is also seen that a
notice under Section 48 of the BNSS, 2023 has been issued to one Mehmuda
Khatoon at the time of the arrest of the accused-applicant.

11. Now the question arises as to whether issuance of a notice under Section 48
of the BNSS, 2023 at the time of arrest of an accused person shall suffice the
mandates of section 36 of the provisions of the BNSS, 2023 though there is no
counter-sign or attestation by any witness or any family member of the accused
arrested person?
12. In consideration of the aforesaid issue, it may be relevant herein to refer to
the principles laid down by the Hon’ble Supreme Court in the landmark case of D.K.
Basu Vs. State of West Bengal (With Ashok K Johri Vs. State of UP) , reported in
(1997) 1 SCC 416 , wherein, the Hon’ble Supreme Court in paragraph-35 has
directed as follows: -
“ 35. We, therefore, consider it appropriate to issue the following requirements to be followed in
all cases of arrest or detention till legal provisions are made in that behalf as preventive
measures:
(1) The police personnel carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and name tags
with their designations. The particulars of all such police personnel who handle

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interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a
memo of arrest at the time of arrest and such memo shall be attested by at least one
witness, who may be either a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made. It shall also be countersigned
by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a
police station or interrogation centre or other lock-up, shall be entitled to have one
friend or relative or other person known to him or having interest in his welfare
being informed, as soon as practicable, that he has been arrested and is being
detained at the particular place, unless the attesting witness of the memo of arrest is
himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by
the police where the next friend or relative of the arrestee lives outside the district or
town through the Legal Aid Organization in the District and the police station of the
area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend of the
person who has been informed of the arrest and the names and particulars of the
police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any present on his/her body, must be
recorded at that time. The "Inspection Memo" must be signed both by the arrestee
and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor
every 48 hours during his detention in custody by a doctor on the panel of approved
doctors appointed by Director, Health Services of the State or Union Territory
concerned. Director, Health Services should prepare such a panel for all tehsils and
districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above,

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should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation.
(11) A police control room should be provided at all district and State
headquarters, where information regarding the arrest and the place of custody of the
arrestee shall be communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should be displayed on a
conspicuous notice board.”

13. From the above, it is clear that Hon’ble Supreme Court has directed that
while arresting a person, at the time of his arrest, an Arrest Memo is required to be
prepared. Sub-paragraph (2) of Paragraph 35 provides that the Arrest Memo shall
be attested by at least one witness, who may be either a member of the family of the
arrestee or a respectable person of the locality from where the arrest is made. It
shall also be countersigned by the arrestee and shall contain the time and date of
arrest. Sub-paragraph (3) of Paragraph 35 provides that a person who has been
arrested or detained and is being held in custody in a police station or interrogation
centre or other lock-up, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested and is being detained at the particular place,
unless the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee. It is also seen that the Hon’ble Supreme Court has not
provided for any exception in Sub-paragraph (2) about the requirement of
attestation by at least one witness, who may be either a member of the family of the
arrestee or a respectable person of the locality from where the arrest is made.

14. It may be worthwhile to refer to the observations of the Hon’ble Supreme

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Court made in paragraphs 37, 38 and 39 of the aforesaid judgment, which are
extracted herein below:-
“ 37. The requirements, referred to above flow from Articles 21 and 22 (1) of the
Constitution and need to be strictly followed. These would apply with equal force to the
other governmental agencies also to which a reference has been made earlier.

38. These requirements are in addition to the constitutional and statutory safeguards and
do not detract from various other directions given by the courts from time to time in
connection with the safeguarding of the rights and dignity of the arrestee.

39. The requirements mentioned above shall be forwarded to the Director General of
Police and the Home Secretary of every State/Union Territory and it shall be their
obligation to circulate the same to every police station under their charge and get the
same notified at every police station at a conspicuous place. It would also be useful and
serve larger interest to broadcast the requirements on All India Radio besides being
shown on the National Network of Doordarshan any by publishing and distributing
pamphlets in the local language containing these requirements for information of the
general public. Creating awareness about the rights of the arrestee would in our opinion
be a step in the right direction to combat the evil of custodial crime and bring in
transparency and accountability. It is hoped that these requirements would help to curb, if
not totally eliminate, the use of questionable methods during interrogation and
investigation leading to custodial commission of crimes.”

15. In view of the aforesaid directions in the case of D.K. Basu (supra) , certain
amendments have been carried out in the Code of Criminal Procedure, 1973 by way
of inclusion of Section 41A, Section 41B, Section 41C and Section 41D, vide the Act
5 of 2009, with effect from 01.11.2010.
16. Section 41B of the Cr.P.C., laid down the procedure of arrest and duty of the
officer making the arrest. After coming into effect of the BNSS, 2023, Section 41B

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has been retained in the BNSS, 2023 as Section 36.
17. Section 36 of the BNSS being relevant in the instant case is extracted herein
below: -
“ 36. Procedure of arrest and duties of officer making arrest.— Every police officer while
making an arrest shall-
(a) Bear and accurate, visible and clear identification of his name which will facilitate easy
identification;
(b) Prepare a Memorandum of Arrest which shall be-
(i) Attested by at least one witness, who is a member of the family of the arrested person
or a respectable member of the locality where the arrest is made;
(ii) Counter signed by the person arrested; and
(c) Informed the person arrested, unless the Memorandum is attested by a member of his family,
that he has a right to have a relative or a friend or any other person named by him to be
informed of his arrest.”

18. What is discernible from the aforesaid Section 36 is that every police officer
while making an arrest mandatorily has to bear an accurate, visible and clear
identification of his name, so that, he can be identified easily. It is also mandated
that while making the arrest, the police officer shall have to prepare the Arrest
Memo which shall be attested by at least one witness, who is a member of the
family of the person arrested or a respectable member of the locality wherein the
arrest is made. It is also provided that the Arrest Memo is mandatorily required to
be countersigned by the person arrested. Therefore, it is apparently very clear that
the Arrest Memo has to be attested by at least one witness, either a family member
or a respectable person of the locality wherein the person is arrested. In view of the
directions of the Hon’ble Supreme Court as discussed above and due to the

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provisions under Section 36 of BNSS, 2023, the compliance of the same is
unavoidable for the police authority while making the arrest.

19. It is also seen that in terms of the Section 36(c) of the BNSS, 2023, the
arrested person shall be informed that he has the right to have a relative or a friend
or any other person named by him to be informed of his arrest, in the event, the
Arrest Memo is not attested by a member of his family. Therefore, it is seen that
though a respectable member of the locality wherein the arrest is made, has signed
the Arrest Memo, an additional duty is casted upon the police authority to inform
the person arrested about his right to be informed about his arrest to a relative or a
friend or any other person named by him. So, it is discernible from the aforesaid
provisions that if the Arrest Memo is signed by any member of the family or a friend
or a person named by the arrested person, the requirement of informing the person
arrested that he has the right to have a relative or a friend or any other person
named by him to inform of his arrest is not mandatory, since by being an attested
witness in the Arrest Memo, his family member is already informed about his
arrest. Therefore, an attestation in the Arrest Memo by a witness is must and there
is no exception to that has been provided in Section 36 of BNSS, 2023.
20. At this point of time, it will be relevant to mention Section 48 of the BNSS,
2023 (Section 50A of the Cr.P.C.). The provisions being relevant for consideration in
the instant case, the same are extracted herein below: -
“ 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 mentioned by the arrested
person for the purpose of giving such information and also to the designated police officer in
the district.

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(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.”

21. From the above, it is clear that Section 48 mandates that when an arrest is
made under the BNSS, the police officer shall forthwith give such information to
any of his relative or friends or any other such person as may be disclosed or
nominated by the arrested person for the purpose of giving such information. In
addition to such information to any member of the family or friends, the designated
police officer in the district is also to be informed. It also mandates that the police
officer shall inform the arrested person of his arrest under Sub-Section (1) as soon
as he is brought to the police station.

22. It is seen that Section 50A of the Cr.P.C., corresponding to Section 48 of the
BNSS, was inserted in the Cr.P.C., vide the Act 25 of 2005, with effect from
23.06.2006. Therefore, it is clear that Section 50A of the Cr.P.C. was already in
existence when Section 41B of Cr.P.C (corresponding to Section 47 of BNSS, 2023)
was inserted with effect from 01.11.2010. Therefore, it cannot be denied that, while
inserting Section 41B into the Cr.P.C., the Legislature was aware of the existence of
Section 50A therein and Section 41B was inserted with such knowledge. So, it can
be said that though the mandate under Section 50A was already there, the mandate
under Section 41B has been included in the Cr.P.C. independently. This shows that
both the Sections 41B and 50A are two independent provisions which require to be

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complied with independently. After coming into effect of the BNSS, 2023,
accordingly, Section 36 and Section 48 of BNSS are required to be complied with by
the police authority while arresting an accused person.

23. Now, another important provision which requires consideration is Section 62
of the BNSS, 2023, which is being relevant in the instant case, is extracted herein
below: -
“ 62. Arrest to be made strictly accordingly to Sanhita- no arrest shall be made except in
accordance with the provisions of this Sanhita or any other law for a time being in force
providing for arrest”.
24. Section 62 of the BNSS makes it clear that any arrest made under the BNSS
has to be made in strict compliance of the provisions of the BNSS.
25. Therefore, a combined reading of the aforesaid Sections of 36, 48 & 62 makes
it clear that while arresting an accused person, the provisions of Section 36 as well
as Section 48 have to be independently complied with. There is no exception which
has been curved out from Section 36, providing that in the event of compliance of
Section 48, the requirement of attestation of at least one witness, who is a family
member of the arrested person or a respectable member of the locality where the
arrest is made is exempted. Therefore, statutory provisions of Section 36 of BNSS,
2023 cannot be said to be negated by compliance of provisions of Section 48 of
BNSS, 2023.
26. There is another aspect that needs to be considered is that in the Arrest
Memo so prepared by the police authority while arresting an accused person, the
attestation has to be made by a member of the family of the person arrested.
Meaning thereby, only a member of the family can be a witness in the Arrest Memo.
But, under Section 36(c), the compliance is required for the police authority to

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inform the person arrested if the Arrest Memo is not signed by any family member
that he has a right to have a relative or friend or any other person to be informed of
his arrest. So purposes are distinct and different.

27. Section 48 of the BNSS, 2023 also provides for the obligation under Section
48 to inform about the arrest 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. Therefore, in the considered view of this Court, the mandate of
Section 36 is very clear that the Arrest Memo has to be signed by either any of the
family member or a respectable member of the locality wherein the arrest is made.
Whereas, under Section 48 of the BNSS, 2023, the obligation of the police authority
is to give the information forthwith 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 therefore, the obligation is not limited to a member
of the family rather, the same has been widen up by inclusion of any such relatives,
friends or such other persons as may be disclosed or nominated by the arrested
person.
28. As discussed above, Section 62 of the BNSS provides that no arrest shall be
made except in accordance with the provisions of the Sanhita or any other law for
the time being in force providing for arrest. Therefore, any arrest that has to be
made is mandatorily has to comply with the provisions and procedure of arrest
while making such arrest. Non compliance of such provisions will be in violation of
the mandatory provisions which will in turn make such arrest illegal. Once an
arrest becomes illegal, the arrested person shall have an unfettered right to be set
at liberty, i.e., to be released on bail.
29. It is seen from the above discussion that language used is Section 36 of the

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BNSS, 2023 is unambiguous. Therefore, it may not be correct on the part of the
court to provide a different interpretation except what could be gathered from a
plain and simple reading of the provision. In this connection, the case of
Nasiruddin V Sita Ram Agarwal , reported in (2003)2 SCC 577 can be referred to.
Paragraph 37 being relevant is extracted herein below:
“ The Court’s jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is
well known that in a given case the court can iron out the fabric but it cannot change the
texture of the fabric. It cannot enlarge the scope of legislation or intention when the language
of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read
something into it which is not there. It cannot rewrite or recast legislation. It is also necessary
to determine that there exists a presumption that the legislature has not used any superfluous
words. It is well settled that the real intention of the legislation must be gathered from the
language used. It may be true that use of the expression “shall or may” is not decisive for
arriving at a finding as to whether the statute is directory or mandatory. But the intention of the
legislature must be found out from the scheme of the Act. It is also equally well settled that
when negative words are used the courts will presume that the intention of the legislature was
that the provisions are mandatory in character.”
30. Similarly, in the case of Satheedevi Vs. Prasanna and Anothe r, reported in
(2010) 6 SCR 657 , the Hon’ble Supreme Court has observed as follows: -
“ 10. Before proceeding further, we may notice two well recognized rules of interpretation of
statutes. The first and primary rule of construction is that the intention of the legislature must
be found in the words used by the legislature itself. If the words used are capable of one
construction, only then it would not be open to the courts to adopt any other hypothetical
construction on the ground that such hypothetical construction is more consistent with the
alleged object and policy of the Act. The words used in the material provisions of the statute
must be interpreted in their plain grammatical meaning and it is only when such words are
capable of two constructions that the question of giving effect to the policy or object of the Act
can legitimately arise - Kanai Lal Sur v. Paramnidhi Sadhukhan 1958 SCR 360 . The other
important rule of interpretation is that the Court cannot rewrite, recast or reframe the

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legislation because it has no power to do so. The Court cannot add words to a statute or read
words which are not therein. Even if there is a defect or an omission in the statute, the Court
cannot correct the defect or supply the omission. Union of India v. Deoki Nandan Aggarwal
1992 Supp (1) SCC 323, Shyam Kishori Devi v. Patna Municipal Corporation (1966) 3 SCR
366. ”
31. In view of the aforesaid discussions, this Court is of the considered view that
the mandates of Section 36, BNSS, 2023 cannot be exempted by complying with the
mandates of Section 48 of the BNSS, 2023. Therefore, if there is any violation while
preparing the Arrest Memo by not obtaining the attestation of either of a family
member or a respectable person of the locality wherein the arrest is made, the
arrest becomes in violation of Section 36, BNSS, 2023 and therefore, the same shall
be treated as an illegal arrest.
32. Coming back to the facts of the instant case in hand, it is seen that the Arrest
Memo does not contain any attestation from any of the family member or any
respectable member of the locality wherein the arrest was made. This clearly
violates the mandates of Section 36 read with Section 62 of the BNSS, 2023.
33. In view of the aforesaid, this Court is of the considered view that non
compliance of Section 36, BNSS, 2023 in the instant case, has made the arrest of the
accused-applicant, an illegal arrest, which provides the accused-applicant the right
to be released on bail.
34. In view of the principles laid down by the Hon’ble Supreme Court in the case
of D.K. Basu (supra) as well as the procedural mandates as laid down under
Section 36 and Section 62 of the BNSS, 2023, this Court is of the view that there is a
violation of mandates of Section 36 read with Section 62 of the BNSS, 2023 in the
instant case, whereby, the fundamental rights guaranteed to the accused-applicant
under Article 21 & 22 (1) of the Constitution of India, has been illegally curtailed.

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35. Accordingly, in view of the aforesaid discussions and findings, this Court
directs the accused-applicant to be released forthwith on bail on furnishing a bail
bond of Rs. 50,000/- (Rupees Fifty Thousand only) with two sureties of like amount
to the satisfaction of the learned Addl. Sessions Judge (FTC), Sribhumi, subject to
the following conditions: -
(i) that the accused-applicant shall appear before the Trial Court as and when
required;
(ii) that the accused-applicant 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;
(iii) that the accused-applicant shall provide his contact details including
photocopy of Aadhar Card or Driving License or PAN card as well as, mobile
number, and other contact details to the Additional Sessions Judge (FTC),
Sribhumi;
(iv) that the accused-applicant shall not commit any offence while on bail.
36. In view of the aforesaid directions, this Bail Application stands disposed of as
allowed.

JUDGE
Comparing Assistant