Devasish Gohain And Anr vs The State Of Assam And Anr

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GAHC010236152026

2026:GAU-AS:15929
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1504/2026
DEVASISH GOHAIN AND ANR
S/O SRI MANOJ GOHAIN
RESIDENT OF HORUDIROK GAON, O.O AND P.S- KAKOPATHER, DIST-
TINSUKIA, ASSAM
2: SRI HIRONMAY MORAN
S/O SRI AJIT MORAN
RESIDENT OF VILL- BORMECHAI
P.S- TANGANA
DIST TINSUKIA
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM.
2:AKASHI NEOG
WSI
TINSUKIA POLICE STATION
P.O AND P.S- TINSUKIA
DIST- TINSUKIA
ASSAM
PIN-78612
BEFORE
HON’BLE MRS. JUSTICE SHAMIMA JAHAN

Advocate for the petitioner(s) : Mr.S. Islam

Advocate for the respondent(s) : Mr. Bankim Sarma, APP,

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Assam
Date on which judgment was reserved : NA
Date of pronouncement of judgment : 16.10.2026
Whether the pronouncement is of the : NA operative part
of the judgment?
Whether the full judgment has been? Yes
pronounced


JUDGMENT AND ORDER (ORAL)
Heard Mr.S. Islam, learned counsel for the petitioners and Mr. B. Sarma, learned Additional
Public Prosecutor for the State of Assam.
2. By this application filed under Section 528 of the BNSS, 2023, the petitioner has prayed for
quashing and setting aside of the orders dated 18.08.2026, 21.08.2026 as well as 08.09.2026, passed by
the Special Judge, Tinsukia, in connection with Tinsukia PS Case No.110 of 2026.
3. The case of the petitioner is that on 24.05.2026, the police personnel of Tinsukia (Sadar) Police
Station, had lodged the ejahar stating, inter alia, that an information was received from reliable
sources that petitioner no.1 operates a Facebook news portal namely Update Now and he along with
his associate have extorted and collected money from some businessman and citizens in an around
Tinsukia for the band organization on the directive of the said organization for the purpose of
procuring, transporting explosives, arms and ammunitions and thereby had waged war against the
Government of India. It is further stated in the FIR that by technical surveillance and human
intelligence surveillance, the petitioner along with two others were found to have been taking part in
unlawful activities and that the petitioner along with two others were arrested. During investigation,
the police arrested another accused person i.e. petitioner no. 2 on finding him of his involvement in the
said offence.
4. The learned Counsel for the petitioners submits that on 05.08.2026, the Superintendent of Police
(HQ) Tinsukia, Assam made an application to the District and Sessions Judge, Cum Special judge,

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Tinsukia for extension of the statutory period for completion of the investigation from 90 days to 180
days under Section 43 D (2) (b) of the UA(P) Act and for continued detention of the accused persons
including the petitioners in the said case.
5. The said application was considered by the Special Judge, and by order dated 18.08.2026, had
allowed the prayer of the Police Officer. In the said order, it was stated that the Investigating Officer
of the case through the Public Prosecutor had prayed for the extension. It was further held that report
of the Investigating Officer was seen and after hearing the Public Prosecutor and the Investigating
Officer and on perusal of scanned copy of the Case Diary, the prayer for extension of the statutory
period was allowed with the further direction that accused persons including the petitioners should
remain in custody.
6. It be stated here that the said order was passed before the completion of90 days of the
incarceration of the petitioner No. 1 and others.
7. Subsequently, the petitioner no.1 filed application for his default bail on completion of his 90
days in custody and also for declaring the order dated 18.08.2026 as illegal but the same was rejected
by the Court vide order dated 21.08.2026 in respect of all the accused persons. Subsequently,
petitioner no.2 had also filed bail application on grounds of long incarceration but the same was also
rejected by order dated 08.09.2026.
8. The learned counsel for the petitioner submits that the said exercise done by the Special Judge,
Tinsukia, was not as per law. He submits that extension of statutory period can be done by the Court,
only when it is satisfied with the report of the Public Prosecutor, indicating the progress of the
investigation and providing specific reasons for the said extension. He submits in the instant case,
there is no report of the Public Prosecutor and the extension is given only on the application filed by
the Investigating Officer. To substantiate his argument, he placed reliance on the judgment passed by
the Apex Court, in Md Ariz Hasnain vs. State of Jharkhand , reported in 2026 LiveLaw
SC 475.
9. On the other hand, Mr. B Sarma, learned Additional Public Prosecutor, submits that the Special
Judge, Tinsukia, vide order dated 18.08.2026, had stipulated that the prayer for extension of the
statutory period made by the Investigating Officer, is endorsed by the Public Prosecutor and that the
Court had heard both the Public Prosecutor and the Investigating officer and after perusal of the

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materials on record, and being satisfied with the grounds, stated therein, the Court allowed the prayer
for extension of the statutory period. As such, he submits that there is no violation of the law.
10. I have heard the learned counsels and have perused the records.
11. Section 43D (2) (b) of the UA (P) Act, provides that if it is not possible to complete the
investigation within the mandatory period of 90 days, the Court may extend the said period to 180
days, only if it is satisfied by looking into the report of the Public Prosecutor. It is further provided in
the said proviso appended to the said provision that the report of the Public Prosecutor should
indicate the progress of the investigation and should give specific reasons for continued detention of
the accused person beyond the period of 90 days. Section 43D (2) (b) is quoted below:-
"43D. Modified application of certain provisions of the Code.
xxxx xxxx xxxx xxxx
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under
this Act subject to the modification that in sub-section (2),
xxxx xxxx xxxx xxxx
(b) after the proviso, the following provisos shall be inserted, namely:--
"Provided further that if it is not possible to complete the investigation within the said period of
ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the
progress of the investigation and the specific reasons for the detention of the accused beyond the
said period of ninety days, extend the said period up to one hundred and eighty days:”
12. From the bare perusal of the aforesaid provision, it is clear as to the mandatory exercise on the
part of the prosecution and that is; (a) the report of the Public Prosecutor indicating the progress of
investigation; and (b) the report has to specify the compelling reasons for seeking the detention of the
accused beyond the statutory period. It is also seen by various decisions of the Hon’ble Supreme Court
that another requirement is also mandated and that is the accused must have been given notice
regarding the filing of the petition. The said requirements are based on the fact that extension of
remand is not an empty formality and that affording opportunity and seeing the reasons behind is sine
quanon , for passing order of extension of statutory period. In the instant case, it is seen that none of
the mandatory requirements are followed, inasmuch, as there is no report from the Public Prosecutor,

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indicating the progress of the investigation and neither any specific reasons were cited before the Court
for detention of the accused persons beyond the period of 90 days.
13. When the present case is examined in the context of provisions of Section 43D(2)(b) of UA(P)
Act, the Trial Court is found to have misdirected itself while passing impugned order. It is pertinent to
mention herein that status of the prosecutor is not a part of the investigating agency as it is an
independent statutory authority. The Supreme Court in State of Maharashtra v. Surendra Pundlik
Gadling and others, reported in (2019) 5 SCC 178 , has held that status of the Prosecutor was not a part
of the investigating agency, but was an independent statutory authority and by considering the case of
Hitendra Vishnu Thakur and others vs. State of Maharashtra; reported in (1994) 4 SCC 602 , the
Supreme Court has held:
"36. No doubt, in para 23 of Hitendra Vishnu Thakur case, this Court laid emphasis on the
importance of the scrutiny by a public prosecutor so as to not leave the detenu in the hands of
the IO alone, being the police authority. The public prosecutor, thus, has the option to agree or
disagree with the reasons given by the IO for seeking extension of time but in the facts of the
present case, the second document in the form of an application shows scrutiny of the first
document and thereafter details grounds and expanded reasons for the requirement of further
time to complete the investigation.
37. Undoubtedly the request of an IO for extension of time is not a substitute for the report of t
he public prosecutor but since we find that there has been, as per the comparison of the two
documents, an application of mind by the public prosecutor as well as an endorsement by him,
the infirmities in the form should not entitle the respondents to the benefit of a default bail when
in substance there has been an application of mind. The detailed grounds certainly fall within
the category of "compelling reasons" as enunciated in Sanjay Kedia case."
14. Further in the case of Ateef Nasir Mulla vs. State of Maharashtra , reported in (2005) 7 SCC 29 , the
Apex Court had held in the facts of the said case that report of the Public Prosecutor contained the
reasons for continued detention and as such, the extension was considered to be proper, which is
however, not the case here. In the instant case, there is no report at all, as could be seen from the order
of the Special Judge, Tinsukia, much less the information regarding progress of the investigation or any
specific reasons for continued detention of the petitioners or other accused persons. It is clear that only
on the petition filed by the Investigating Officer of the case, extension was allowed from 90 days to
180 days for completion of the investigation. The accused person was also directed to remain in

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custody without there being any reason assigned by the Public Prosecutor for their continued detention.
As such, there being violation of the law, this Court deems it fit to interfere with the order dated
18.08.2026.
15. Accordingly, the order dated 18.08.2026, passed by the Special Judge, Tinsukia, in Tinsukia PS
Case No. 110 of 2026, is set aside and quashed. The other two orders dated 21.08.2026 as well as
08.09.2026 are also interfered with by this Court.
16. With the aforesaid observations and directions, this Criminal Petition stands disposed
of.
JUDGE
Comparing Assistant