MAHBUBUL HOQUE v. THE STATE OF ASSAM

3. Mr. Bora, learned Senior Counsel submitted that the petitioner was arrested on

22.02.2025 in Patharkandi P.S. Case No. 54/2025 under Sections 16(1) (2)/318(4)/316(5)/336(3) of the BNS and a co-ordinate Bench by order dated 03.03.2025 passed in Bail Appln. No. 563/2025 released him on bail due to failure on the part of the police from Patharkandi police station to comply with the provisions of Section 47 and 48 of the BNSS, thereby violating the provisions of Article 22(1) of the Constitution of India.

4. It is submitted by Mr. Bora, learned Senior Counsel that the facts stated in the FIR relating to Patharkandi P.S. Case No. 54/2025 and that of Patharkandi P.S. Case No. 55/2025 are same and has arisen out of the same incident, except that the facts in said Patharkandi P.S. Case No. 55/2025 are more elaborate, where Section 11 of the Public Examinations (Prevention of Unfair Means) Act, 2024 has been added. Since the petitioner has already been released on bail in said Patharkandi P.S. Case No. 54/2025, therefore, he is also entitled for his bail in said Patharkandi P.S. Case No. 55/2025 as the prosecution while arresting the petitioner in said Patharkandi P.S. Case No. 55/2025 did not comply with the mandatory provisions of Sections 47 and 48 of the BNSS, 2023; did not specify the ground of Page No.# 3/11 his arrest in the said case, neither communicated to him about it, nor to his family members, relatives or others as required under the law and detained him in custody in violation of the provisions of Article 22(1) of the Constitution. Mr. Bora submitted that there cannot be registration of more than one FIR against the petitioner relating to the same incident, that too, in the same police station.

5. Placing both the FIRs relating to Patharkandi P.S. Case No. 54/2025 as well as Patharkandi P.S. Case No. 55/2025, Mr. Bora, learned Senior Counsel stated that from the forwarding report pertaining to the FIR of Patharkandi P.S. Case No. 54/2025 it can be seen that the petitioner was arrested in the said case on 22.02.2025 at 03:00 P.M. and that in the said forwarding report dated 22.02.2025 the concerned Investigating Officer clearly indicated that another case being Patharkandi P.S. Case No. 55/2025 had already been registered against the petitioner. From the FIR of Patharkandi P.S. Case No. 55/2025 Mr. Bora, placed that it was registered at 10:30 A.M which also indicate that related Patharkandi P.S. G.D.E. No. 03 dated 22.02.2025 was registered at 14:50 hrs. (02:50 P.M.). Therefore, Mr. Bora, learned Senior Counsel submitted that in said Patharkandi P.S. Case No. 55/2025, the petitioner could not have been shown arrested as in said Patharkandi P.S. Case No. 54/2025 he was arrested at 03:00 P.M on 22.02.2025 only.

6. Placing the remand order of the petitioner dated 22.02.2025 passed by learned Sub Divisional Judicial Magistrate (Sadar), Sribhumi in said Patharkandi P.S. Case No. 55/2025, Mr. Bora, learned Senior Counsel submitted that in the said Order dated 22.02.2025, the learned Magistrate did not indicate as to whether the authorities of Patharkandi Police Station complied with the provisions of Sections 47 and 48 of the BNSS, 2023 by serving and/or communicating the grounds of arrest to the petitioner while arresting him in said Patharkandi P.S. Case No. 55/2025 or not.

7. Mr. Bora, learned Senior Counsel in support of his arguments and in favour of the petitioner relied on the decisions of the Hon’ble Apex Court in the cases of Vihaan Kumar Vs. State of Haryana and Another, reported in (2025) SCC OnLine SC 269; Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254; T.T. Antony Vs. State of Kerala & Others, reported in (2001) 6 SCC 181; Babubhai Vs. State of Gujrat & Others, reported in (2010) 12 SCC 254; Dhanraj Aswani Vs. Amar S. Mulchandani and Another, reported in (2024) 10 SCC Page No.# 4/11 336 and Arnab Manoranjan Goswami Vs. State of Maharashtraand Others, reported in (2021) 1 SCC 802.

8. After hearing Mr. Bora, learned Senior Counsel and Mr. Phukan, learned Public Prosecutor, Assam, the Court by a common order dated 05.03.2025 directed the State and the Prosecution to submit its reply pertaining to the alleged violation of provisions of Article 22(1) of the Constitution and alleged non-compliance of the mandatory provisions of Sections 47 and 48 of the BNSS, 2023.

9. Pursuant to said order dated 05.03.2025, the State Government in the Home and Political Department as well as the Deputy Superintendent of Police-cum-the Investigating Officer of said Patharkandi P.S. Case No. 55/2025 filed their affidavits on 07.03.2025 and

10.03.2025 respectively. The petitioner jointly along with the other arrested accused persons of said Patharkandi P.S. Case No. 55/2025 filed a common additional affidavit on 10.03.2025.

10. Mr. M. Phukan, learned Public Prosecutor, Assam with regard to the claim of the petitioners pertaining to the two FIRs relating to the same incident submitted that in T.T. Antony (Supra) and Babubhai (Supra), the incident involved in those cases relate to incidents that occurred on a single day, whereas with regard to Patharkandi P.S. Case Nos. 54/2025 and 55/2025, the incident involved, were of continuous process that relates to economic offences.

11. In their affidavits, i.e., the affidavits of the Home and Political Department as well as that of the Investigating Officer of the case indicated that Patharkandi P.S. Case No. 54/2025 was registered on 21.02.2025 at 11:00 P.M., the G D Entry was made at 11:00 P.M. on 21.02.2024 itself and the said FIR was uploaded on the Crime and Criminal Tracking Network and Systems (CCTNS) on 22.02.2025 at 04:07 A.M. Similarly, Patharkandi P.S. Case No. 55/2025 was registered on 22.02.2025 at 10:30 A.M. with G D Entry No. 3 dated

22.02.2025 at 14:50 Hrs and was subsequently uploaded on CCTNS on 22.02.2025 at 02:50 P.M. and that the time of upload on CCTNS is solely due to server related procedures.

12. The respondent submitted that the decision of the Hon’ble Supreme Court in the case of Dhanraj Aswani (supra) relied by the petitioner is not applicable as the said case relates to pre-arrest bail applications, whereas, the present case is a bail application relating Page No.# 5/11 to the formalities of “shown arrest”.

13. The respondents also stated that the Hon’ble Supreme Court have held that a second FIR is permissible on the grounds of — (i) Different Scope: If the ambit of the two FIRs are different, even if they arise from the same set of circumstances; (ii) Larger Conspiracy: When investigation reveals that the first FIR is a part of a larger conspiracy that needs separate investigation; (iii) New Facts or Evidence: If fresh information comes to light that was not included in the first FIR; (iv) Separate Incidents: If the offences alleged in the second FIR are distinct, even though they may be similar or connected to the first FIR and (v) The second FIR uncovered wider corruption network involving multiple people over a period of time.

14. However, in both the affidavits, the Home and Political Department of the State as well as the concerned Investigating Officer of the case are silent relating to the compliance of the mandatory provisions of Sections 47 and 48 of the BNSS. Mr. Phukan, learned Public Prosecutor, Assam placed the Case Diary of Patharkandi P.S. Case No. 55/2025.

15. On perusal, it is seen that the relevant Case Diary does not contain anything to show that the provisions of Sections 47 and 48 of the BNSS were complied by the authorities concerned while arresting the petitioner.

16. Sections 50 and 50A of the Code of Criminal Procedure, 1973 (CrPC) have been incorporated as Sections 47 and 48 in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which are as follows — Section 50 CrPC / Section 47 BNSS "Person arrested to be informed of grounds of arrest and of right to bail.— (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf". Section 50A CrPC / Section 47 BNSS “50A. Obligation of person making arrest to inform about the arrest, etc., to a nominated person.— Page No.# 6/11 (1) Every police officer or other person making any arrest under this Code [Sanhita in BNSS] shall forthwith give the information such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be closed or nominated by the personfor the purpose of giving such information. (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 abook to be kept in the police station in such form as may be prescribed in this behalf by the StateGovernment. (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 compiled with in respect of such arrested person.”

17. Hon’ble Division Bench of this Court in the case of Ajit Kumar Sarmah -Vs- The State of Assam and others, decided on 07-01-1976, reported in 1976 CRI. L. J. 1303 = 1976 STPL 89 Gauhati have held that— The provision of Section 50 (CrPC, 1898) is mandatory and must be strictly complied with. A citizen's liberty cannot be curtailed except in accordance with law. Even if any communication about the offence was orally made by respondent No. 3 (Officer-in- charge of the concerned Police Station) to the petitioner, we do not know what kind of communication was made, whether the communication of the full particulars or the mere section of the offence was told to the petitioner. In the circumstances, we hold that the arrest and detention of the petitioner by respondent No. 3 was in violation of Sec. 50 CrPC. They are illegal, and, consequently, the P.R. bond that had to be executed by the petitioner was also a nullity.In the result we cancel the P.R. bond executed by the petitioner and he is freed from it. It is to be noted that Section 50 CrPC, 1898 and Section 50 CrPC, 1973 are same.

18. In the case of Sheela Barse -Vs- State of Maharashtra, decided on 15-02-1983,