Dusmanta Sabar vs State Of Orissa And Another

G. Satapathy, J

This is a bail application U/S.483 of BNSS by the petitioner for grant of bail in connection with Jaipatna PS Case No.287 of 2025 corresponding to CT Case No.418/89 of 2025(POCSO) pending in the file of learned ADJ Sessions Judge-cum-Special Court under POCSO Act, Kalahandi at Bhawanipatna for commission of offences punishable U/Ss.137(2)/64(2)(m) of BNS r/w Section 6 of POCSO Act, on the main allegation of kidnapping the victim and committing rape and aggravated penetrative sexual assault upon her.

Heard, Mr. Satyanarayan Mishra, learned counsel for the Petitioner and Mr. T.K. Acharya, learned Addl. Public Prosecutor in the matter and perused the record, but none appears for the victim despite being duly intimated as informed by learned Addl. PP.

The only ground under which bail is sought for to the Petitioner is for want of compliance of Article 22(1) of the Constitution of India r/w Section 47 of BNSS, but law is fairly well settled that the grounds of arrest must be communicated in writing to the arrestee by the Arresting Officer within two hours before his production in the Court, however, on a careful perusal of the document produced by the Petitioner i.e. certified copy of grounds of arrest does reveal the signature of Petitioner in column no.6 at the bottom, but the certified copy of memo of arrest which has been produced reveals a different signature of the Petitioner. On a comparative look to these two signatures on the documents, it appears that the signature in the document of grounds of arrest substantially differs with the signature of the Petitioner in the memo of arrest in addition to absence of signature of the Arresting Officer. When a duty is cast upon a public official to do certain thing in a certain way, the same has to be done in that way, but no further explanation can be accepted to consider that the said document has been substantially complied with. Article 22(1) makes it mandatory for informing the grounds of arrest in writing to the arrestee, which has not been done in this case.

What would be the legal consequence, if the ground of arrest is not communicated to the arrestee in writing has been well elucidated by the Apex Court in Directorate of Enforcement vrs. Subash Sharma; 2025 SCC OnLine SC 240, wherein in a somewhat similar situation, the Apex Court at Paragraph-8 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.”

In view of the above facts and circumstance and considering the failure of the arresting Officer to comply the mandate of provision of Article 22(1) of the Constitution of India r/w Section 47 of BNSS, this Court has no option left, but to admit the Petitioner to bail.

Hence, the bail application of the Petitioner stands allowed and he is allowed to go on bail on furnishing bail bonds of Rs.25,000/- (Rupees Twenty Five Thousand) only with one solvent surety for the like amount to the satisfaction of the learned Court in seisin of the case on such terms and conditions as deem fit and proper by it with following conditions:-

(i) the petitioner shall not contact the victim or visit her house or village and

(ii) the petitioner shall not threaten/ induce/influence/coerce any of the witnesses including the victim and her family members acquainted with the facts of the case so as to dissuade them from disclosing such facts before the Court.

This Court, however, reserves the liberty to the victim and the State to file appropriate application for cancellation of bail, if any of the conditions are violated or a case for cancellation of bail is otherwise made out. It is made clear that in such event for being approached for cancellation of bail, the learned trial Court would be at liberty to pass appropriate order in accordance with law without further reference to this Court.

Accordingly, the BLAPL stands disposed of. Issue urgent certified copy of the order as per Rules.