ADVERTISEMENT
Gauhati High Court
Page No.# 1/17 vs The National Investigation Agency on 25 March, 2026
Page No.# 1/17
GAHC010212982025
2026:GAU-AS:4310-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./433/2025
HEMKHOLAL MATE
S/O - LT ONKHOLUN MATE
R/O - K. MOULSANG VILLAGE, TENGNOUPAL, SUB-DIVISION - CHANDEL
P.O. AND P.S. - MOREH
DIST - MOREH, MANIPUR
PIN - 795131
VERSUS
THE NATIONAL INVESTIGATION AGENCY
REPRESENTED BY SC, NIA
Advocate for the Petitioner : Noorjaman Ahmed, MR A BASUMATARY,MR N AHMED,MR. N J
DUTTA
Advocate for the Respondent : SC, NIA,
Linked Case : Crl.A./345/2025
PHILIP KHAIKHOLAL KHONGSAI
S/O - LT MARCUS KHONGSAI
R/O - NEW MOREH WARD NO. 8
MANIPUR
PIN - 795131
Page No.# 2/17
VERSUS
NATIONAL INVESTIGATING AGENCY
REPRESENTED BY ITS DIRECTOR GENERAL
CGO COMPLEX
LODHI ROAD
NEW DELHI - 110003
2:TUSHAR BISHT
INSPECTOR/CIO
NIA
G-1
TYPE VI
OFFICER COLONY
LAMPHEL
IMPHAL WEST
MANIPUR - 795004
------------
Advocate for : MR BAPLU CHAKMA
Advocate for : SC. NIA appearing for NATIONAL INVESTIGATING AGENCY
-BEFORE-
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
HON'BLE MR. JUSTICE PRANJAL DAS
Advocate for the appellants : Mr. N. J. Dutta, Ld Adv
: Mr. S. Borgohain, Ld Adv
Advocate for the respondents : Mr. R.K. D. Choudhury,
Standing counsel, NIA
Date on which judgment is reserved : 13.03.2026
Date of pronouncement of judgment : 25.03.2026
Whether the pronouncement is of the
operative part of the judgment ? : N/A
Whether the full judgment has been : Yes
pronounced?
Page No.# 3/17
JUDGMENT & ORDER (CAV)
(Pranjal Das, J)
These two criminal appeals, being Criminal Appeal No.
433 of 2025 and Criminal Appeal No. 345 of 2025, preferred by
the appellants namely, Philip Khaikholal Khongsai and
Hemkholal Mate, respectively, are being disposed of by this
common Judgment and Order.
2. Both the criminal appeals have been filed against order
dated 04.07.2025, passed by the Learned Special Judge, NIA
Court, Guwahati in Special NIA Case No. 5 of 2024, whereby
petition No. 481 of 2025, preferred by the appellants seeking
bail, was rejected.
3. It may be mentioned herein that, both the appellants were
arrested on 29.01.2024 in connection with Moreh PS Case No.
1645 (10) of 2023 with regard to an incident of killing of SDPO,
Moreh. At the time of their arrest, both the appellants were
already in custody in another case and they were shown arrested
in this case with the permission of the Court.
4. Subsequently, during the investigation of the aforesaid
Moreh PS Case No. 1645 (10) of 2023, the Central Government
directed the NIA (National Investigating Agency) to take over the
investigation of the case and, accordingly, the NIA re-registered
the case as RC-02/2024/NIA-IMP dated 09.02.2024 and upon
completion of the investigation, the charge sheet was submitted
under section 302/400/120B/121/122/34 IPC read with section
Page No.# 4/17
16 of the UAP Act. It may also be mentioned herein that, vide
order dated 26.11.2024 passed by the Hon'ble Supreme Court, a
series of cases investigated by NIA and pending in the State of
Manipur, including the present case, were transferred to the
Court of Special Judge, NIA at Guwahati. Vide the impugned
order dated 04.07.2025, the bail petition preferred by the two
appellants before the Learned Trial Court was rejected, as
already mentioned.
5. Before the Learned Trial Court also, the appellants had
taken the ground of violation of Article 21/22(1) of the
Constitution of India for not being properly informed of the
grounds of arrest. However, the learned Trial Court did not accept
the contentions of the accused persons in this regard and stated
that from the arrest memos available in the case record, grounds
of arrest have been mentioned in brief and that Serial No. 7 of
the arrest memo reveals that the information about the arrest
was given to the family members as well and was signed by the
witnesses.
6. Before this Court also, in the appeal, the appellants have
contended that at the time of their arrest, in this case on
29.01.2024, they were not furnished with the grounds of arrest
as required under Section 50/50A Code of Criminal Procedure,
1973 (as it existed then) and presently Section 47/48 BNSS. It is
also contended that the arrest memo of the appellants was also
defective, inasmuch as, it did not contain the signature of the
arrestee.
Page No.# 5/17
7. In support of these contentions, the learned counsel for the
appellants have relied on the following decisions:-
"(i) A. R. Antulay Vs. Ramdas Sriniwas Nayak
reported in (1984) 2 SCC 500;
(ii) Kantaru Rajeevaru Vs. Indian Young Lawyers
Association reported in (2000) 2 SCC 1;
(iii) Roy V.D. Vs. State of Kerela reported in (2000)
8 SCC 590;
(iv) Pankaj Bansal Vs. Union of India reported in
2023 SCC Online SC 1244;
(v) Prabir Purkayastha Vs. State (NCT of Delhi)
reported in 2024 SCC Online SC 934;
(vi) Vihaan Kumar Vs. State of Haryana reported in
2025 SCC Online SC 269
(vii) Ahmed Mansoor and Ors Vs. State Rep. by
Assistant Commissioner of Police & Anr reported in 2025
SCC Online SC 2650.
(viii) Mihir Rajesh Shah Vs. State of Maharashtra &
Anr reported in (2026) 1 SCC 500.
(ix) Jayanta Kumar Das Vs. Assam Board of
Revenue reported in 1983 SCC Online Gau 127
(x) Thokchom Shyamjai Singh Vs. Union of India
reported in 2025 SCC Online Del 980
(xi) Sakib Choudhary Vs. the State of Assam in Bail
Application No. 629/2025 "
Page No.# 6/17
8. The respondent/ NIA represented by the Learned Deputy
SGI has filed an affidavit-in-opposition. Supporting the pleadings
filed on behalf of the prosecution, Mr. Choudhury, the learned
DSGI, submits and contends that, considering the penal
provisions under which the chargesheet has been filed, the rigors
of Section 43D (5) proviso UAPA would be applicable and
therefore, there is also statutory bar with regard to grant of bail,
and that the learned Trial Court rightly went into the merits of
the matter and rejected the bail.
9. It is submitted and contended that the nature of the
alleged offences are very serious, impinging on the security of
the country and these aspects cannot be overlooked. It is also
contended and submitted that the grounds on which the
appellants were arrested have been conveyed to them and their
family members, and that they were represented by learned
counsels at different stages and that they had also preferred bail
petitions upon being aware of the facts and circumstances of
their arrest in this case.
10. We have perused the relevant materials, considered the
rival submissions and perused the decisions cited at the bar.
11. Before proceeding further, Article 22(1) of the Constitution
of India may be reproduced herein below:-
"22. Protection against arrest and detention in certain
cases
(1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to be defended
by, a legal practitioner of his choice."
Page No.# 7/17
12. In the case of Prabir Purkayastha Vs. State (NCT of
Delhi) reported in (2024) 8 SCC 254, the Hon'ble Apex Court
has held that grounds of arrest in reasonable detail and specific
to the accused person have to be furnished to him at the time of
his arrest and also furnished to his family members or nominated
persons. The relevant paragraphs thereof may be reproduced
herein below:-
"21. The right to be informed about the grounds of arrest flows
from Article 22(1) of the Constitution of India and any infringement
of this fundamental right would vitiate the process of arrest and
remand. Mere fact that a charge sheet has been filed in the matter,
would not validate the illegality and the unconstitutionality committed
at the time of arresting the accused and the grant of initial police
custody remand to the accused.
30. Furthermore, the provisions of Article 22(1) have already been
interpreted by this Court in Pankaj Bansal(supra) laying down beyond
the pale of doubt that the grounds of arrest must be communicated
in writing to the person arrested of an offence at the earliest. Hence,
the fervent plea of learned ASG that there was no requirement under
law to communicate the grounds of arrest in writing to the accused
appellant is noted to be rejected.
48. It may be reiterated at the cost of repetition that there is a
significant difference in the phrase 'reasons for arrest' and 'grounds
of arrest'. The 'reasons for arrest' as indicated in the arrest memo are
purely formal parameters, viz., to prevent the accused person from
committing any further offence; for proper investigation of the
offence; to prevent the accused person from causing the evidence of
the offence to disappear or tempering with such evidence in any
manner; to prevent the arrested person for making inducement,
threat or promise to any person acquainted with the facts of the case
so as to dissuade him from disclosing such facts to the Court or to
the Investigating Officer. These reasons would commonly apply to
any person arrested on charge of a crime whereas the 'grounds of
arrest' would be required to contain all such details in hand of the
Investigating Officer which necessitated the arrest of the accused.
Simultaneously, the grounds of arrest informed in writing must
convey to the arrested accused all basic facts on which he was being
arrested so as to provide him an opportunity of defending himself
against custodial remand and to seek bail. Thus, the 'grounds of
arrest' would invariably be personal to the accused and cannot be
Page No.# 8/17
equated with the 'reasons of arrest' which are general in nature. "
13. Taking the law on the subject forward, the Hon'ble
Supreme Court in the case of Vihaan Kumar Vs. State of
Haryana & Anr reported in (2025) SCC Online SC 269, has
held that such grounds of arrest have to be furnished to the
accused and his family members/nominated person in keeping
with the provisions under Section 47/48 BNSS (earlier Section
50/50(A) CrPC, 1973). This is essential to fulfill the mandate of
Article 22 (1) of the Constitution of India. It has been held that in
case of failure to comply with these requirements, the arrest of
the person would be rendered fatally infirm and his continued
detention untenable and that in such a situation, he would be
entitled to get bail. It has also been held that once a person is
found to be entitled to bail for violation of this arrest procedure,
such right to bail shall prevail over any statutory restrictions on
grant of bail. The relevant paragraphs of Vihaan Kumar (supra)
may be reproduced herein below:-
"26. Therefore, we conclude:
26.1. The requirement of informing a person arrested of grounds
of arrest is a mandatory requirement of Article 22(1);
26.2. The information of the grounds of arrest must be provided
to the arrested person in such a manner that sufficient knowledge
of the basic facts constituting the grounds is imparted and
communicated to the arrested person effectively in the language
which he understands. The mode and method of communication
must be such that the object of the constitutional safeguard is
achieved;
26.3.When arrested accused alleges non-compliance with the
requirements of Article 22(1), the burden will always be on the
Investigating Officer/Agency to prove compliance with the
requirements of Article 22(1);
26.4. Non-compliance with Article 22(1) will be a violation of the
Page No.# 9/17
fundamental rights of the accused guaranteed by the said Article.
Moreover, it will amount to a violation of the right to personal
liberty guaranteed by Article 21 of the Constitution. Therefore,
non-compliance with the requirements of Article 22(1) vitiates the
arrest of the accused. Hence, further orders passed by a criminal
court of remand are also vitiated. Needless to add that it will not
vitiate the investigation, charge sheet and trial. But, at the same
time, filing of chargesheet will not validate a breach of
constitutional mandate under Article 22(1);
26.5. When an arrested person is produced before a Judicial
Magistrate for remand, it is the duty of the Magistrate to ascertain
whether compliance with Article 22(1) and other mandatory
safeguards has been made; and
26.6. When a violation of Article 22(1) is established, it is the
duty of the court to forthwith order the release of the accused.
That will be a ground to grant bail even if statutory restrictions on
the grant of bail exist. The Criminal Appeal @ SLP(Crl.) 13320 of
2024 Page 28 of 36 statutory restrictions do not affect the power
of the court to grant bail when the violation of Articles 21 and 22
of the Constitution is established."
42. The purpose of inserting Section 50A of the CrPC, making it
obligatory on the person making arrest to inform about the arrest
to the friends, relatives or persons nominated by the arrested
person, is to ensure that they would able to take immediate and
prompt actions to secure the release of the arrested person as
permissible under the law. The arrested person, because of his
detention, may not have immediate and easy access to the legal
process for securing his release, which would otherwise be
available to the friends, relatives and such nominated persons by
way of engaging lawyers, briefing them to secure release of the
detained person on bail at the earliest. Therefore, the purpose of
communicating the grounds of arrest to the detenue, and in
addition to his relatives as mentioned above is not merely a
formality but to enable the detained person to know the reasons
for his arrest but also to provide the necessary opportunity to him
through his relatives, friends or nominated persons to secure his
release at the earliest possible opportunity for actualising the
fundamental right to liberty and life as guaranteed under Article 21
of the Constitution. Hence, the requirement of communicating the
grounds of arrest in writing is not only to the arrested person, but
also to the friends, relatives or such other person as may be
disclosed or nominated by the arrested person, so as to make the
mandate of Article 22(1) of the Constitution meaningful and
effective failing which, such arrest may be rendered illegal."
Page No.# 10/17
14. In the case of Anar Ali v. State of Assam in BA No.
8169/2025, this Court after referring to various decisions on
this subject including Prabir Purkayastha (supra) and Vihaan
Kumar (supra), was pleased to summarize the legal position in
Para 22 which is reproduced herein below:-
"22. Thus, from the aforesaid long line of decisions, it can be safely
concluded that;
I. Furnishing of the grounds of arrest is mandatory, and in the
absence thereof, results in a violation of Articles 21 and 22(1) of
the Constitution of India.
II. It is also firmly established that where there is a statutory
prescription of the manner and method of furnishing such
grounds, it should be scrupulously followed.
III. However, when a specific form is not prescribed, insistence on
written communication in every case is not a mandate. In such
cases, substantial compliance with this requirement is sufficient,
unless demonstrable prejudice is shown.
IV. It can also be safely concluded from the ratios laid down in the
judgments cited above that the right to be informed of the
grounds of arrest is not an empty formality. Even if the arresting
officer does not furnish written copy at the very moment of
arrest, there must be contemporaneous record in the case
diary/official register that the grounds were reduced into writing
at the time of arrest and the same were read over/explained to
the accused for the reason that such contemporaneous record
serves as a judicially reviewable evidence of compliance of such
mandate, when the arrestee alleges prejudice.
V. Subsequent explanations or affidavits by the arresting officer may
not cure such defects in the absence of a contemporaneous
record, as the requirement of furnishing grounds for arrest, either
in writing or orally, as the case may be, is mandatory and goes to
the validity of the custody itself. "
15. In the recent case of Mihir Rajesh Shah Vs. State of
Maharashtra reported in (2026) 1 SCC 500, the Hon'ble Apex
court further developed the law on this subject and emphasized
the mandatory requirement of furnishing grounds of arrest and
summarized certain principles regarding the same. For ready
Page No.# 11/17
reference, paragraphs 52, 53 and 66 may be reproduced herein
below:
" 52. From the catena of decisions discussed above, the legal
position which emerges is that the constitutional mandate
provided in Article 22(1) of the Constitution of India is not a mere
procedural formality but a constitutional safeguard in the form of
fundamental rights. The intent and purpose of the constitutional
mandate is to prepare the arrested person to defend himself. If
the provisions of Article 22(1) are read in a restrictive manner, its
intended purpose of securing personal liberty would not be
achieved rather curtailed and put to disuse.
53. The mode of communicating the grounds of arrest must be
such that it effectively serves the intended purpose as envisioned
under the Constitution of India which is to enable the arrested
person to get legal counsel, oppose the remand and effectively
defend himself by exercising his rights and safeguards as provided
in law. The grounds of arrest must be provided to the arrestee in
such a manner that sufficient knowledge of facts constituting
grounds is imparted and communicated to the arrested person
effectively in a language which he/she understands. The mode of
communication ought to be such that it must achieve the intended
purpose of the constitutional safeguard. The objective of the
constitutional mandate would not be fulfilled by mere reading out
the grounds to the arrested person, such an approach would be
antithesis to the purpose of Article 22(1).
66. In conclusion, it is held that:
66.1. The constitutional mandate of informing the arrestee
the grounds of arrest is mandatory in all offences under all
statutes including offences under IPC, 1860 (now BNS 2023);
66.2. The grounds of arrest must be communicated in writing
to the arrestee in the language he/she understands;
66.3. In case(s) where, the arresting officer/person is unable
to communicate the grounds of arrest in writing on or soon after
arrest, it be so done orally. The said grounds be communicated in
writing within a reasonable time and in any case at least two hours
prior to production of the arrestee for remand proceedings before
the Magistrate.
66.4. In case of non-compliance of the above, the arrest and
subsequent remand would be rendered illegal and the person will
be at liberty to be set free."
Page No.# 12/17
16. Coming back to the facts of the instant case, the
prosecution has been unable to show any notice under Section
50/50A CrPC given to the appellants at the time of their arrest on
29.01.2024. The prosecution has also not been able to show any
notice under Section 50A CrPC pertaining to furnishing of
grounds of arrest to family member of the arrested person or his
nominated person. As far as the arrest memo is concerned, we
find that the columns pertaining to signature of the arrestees is
blank, though signatures of witnesses are available.
17. With regard to the grounds of arrest, it has been contended
by the prosecution that the appellants were aware of the facts
and circumstances of their arrest and hence, of the grounds, and
this is proved by the fact that they had engaged learned counsels
to represent them before the learned Trial Courts and that they
had also filed bail applications.
18. We have perused the relevant portions of the case diary
produced by the prosecution. We do not find any
contemporaneous endorsements or noting in the case diary
about furnishing of grounds of arrest to the accused/ arrestee
and his family members/nominated persons at the time of their
arrest on 29.01.2024. However, it is mentioned in the case diary
with regard to the arrests that at the time of their arrests, the
accused persons refused to put their signatures on the Arrest
Memo. Further, it appears that the signatures of the witnesses
were that of police officials of Moreh Police Station, though the
accused petitioners were detained and arrested at Assam Rifles
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Camp which was located not at the same place.
19. It has been held in Vihaan Kumar (supra) in Para 31, that
mentioning the grounds of arrest in the remand application is not
a substitute for furnishing the grounds of arrest to the
accused because such information is for the perusal of the
Remand Court. For ready reference, the said paragraph may be
reproduced herein below:
"31. A contention has been raised in the written argument that
the grounds of arrest were incorporated in the remand report. This
contention has been raised for the first time in written submissions
before this Court. This is not pleaded in the reply filed before the
High Court and this Court. The police submit a remand report
before the learned Magistrate for seeking remand without serving a
copy thereof to the arrestee. The reason is that the Police cannot
divulge the details of the investigation to the accused till the final
report is filed. Mentioning the grounds of arrest in the remand
report is no compliance with the requirement of informing the
arrestee of the grounds of arrest."
20. It follows from these principles that the constitutional
mandate under Article 22(1) requires the grounds of arrest to be
furnished to the arrested person and his relatives/nominated
person. In our considered opinion, merely because the arrested
accused persons choose to be represented by lawyers and prefer
bail applications, that would not substitute for lack of or gross
inadequacy in furnishing grounds of arrest.
21. Upon perusing the relevant materials as indicated above,
and in the backdrop of the discussion in the preceding
paragraphs - we come to the considered opinion that at the
time of arrest of the petitioners on 29.01.2024, the requirement
of furnishing grounds of arrest under Section 50/50A Code of
Page No.# 14/17
Criminal Procedure, 1973 were violated and therefore, the
mandate of Article 22(1) of the Constitution of India was not
fulfilled in terms of the laws laid down in this regard by the
Hon'ble Supreme Court in the decision of Prabir Purkayastha
(supra), Vihaan Kumar (supra) and Mihir Rajesh Shah
(supra), amongst others.
22. Accordingly, despite the serious nature of the offences and
the concerns in this regard pointed out by the prosecution - the
continued under trial detention of the petitioners has become
untenable in terms of the aforesaid laws laid down by the Hon'ble
Supreme Court and, therefore, they are required to be granted
bail, subject, of course to suitable conditions.
23. Thus, the impugned order dated 04.07.2025, passed by the
Learned Special Judge, NIA Court, Guwahati in Special NIA Case
No. 5 of 2024, whereby petition No. 481 of 2025, preferred by
the appellants seeking bail was rejected - is hereby set aside.
24. The accused petitioners are therefore allowed to go on bail
on furnishing bail bond of Rs. 1,00,000/- (Rupees one lakh)
each with 2 (two) sureties of like amount each, to the satisfaction
of the concerned learned Court. (Special Judge, NIA, Guwahati),
and subject to the following conditions that:-
(i) they shall not abscond;
(ii) they shall be available for the remaining trial;
(iii) they shall not hamper or tamper with the evidence;
(iv) they shall not threaten or influence any witnesses;
(v) they shall not misuse their liberty to commit any illegal
Page No.# 15/17
activities or offences.
25. In case of violation of any or more bail conditions, their bail
would be liable to be cancelled.
26. Return the case diary.
27. The criminal appeals stands allowed and disposed of.
JUDGE JUDGE
Concurring opinion:
(per Arun Dev Choudhury, J)
1. I have the privilege of reading the judgment and order
rendered by brother Pranjal Das, J.
2. I am in complete agreement with the conclusions arrived at by
my learned brother and write this separate opinion only to
underscore that the present case exemplifies a deeper
constitutional concern: the erosion of procedural safeguards at
the stage of arrest, which constitute the first and most critical
check against arbitrary state power.
3. The records reveals not a solitary lapse, but a continued
defects; absence of a duly signed arrest memo in terms of
section 41B, Cr.P.C, lack of contemporaneous material suggesting
denial of the accused persons to sign such arrest memo, lack of
demonstrable communication of the grounds of arrest as
mandated by law and explicated in Vihan Kumar, non-
compliance with section 50A Cr.P.C, and a failure to adhere even
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SPONSORED
to judicial directions requiring supply of materials to defence.
4. Such safeguards are not ornamental. They are integral to the
guarantee of personal liberty under Article 21; their dilution
transforms the process of arrest from a regulated act to an
assertion of authority.
5. Equally, the argument that no prejudice has been caused
cannot be countenanced in the context of my learned brother’s
findings.
6. Prejudice in the case like the present one inheres in the very
denial of safeguards, i.e. the inability of the accused to effectively
know, challenge and respond to the grounds of his arrest at its
inception. The appearance of the counsel at the time of remand
and in the absence of handing over the required materials/ lack
of information required, itself is a prejudice for the inability of the
accused persons to effectively know, challenge and respond to
the grounds of their arrest.
7. To insist upon a further demonstration of prejudice is to
misunderstand the nature of the right itself. It is important, in
this context, to record that liberty cannot be conditioned upon
post facto justification.
8. When the constitution and the statute prescribe the manner in
which a person may be deprived of liberty, that mandate is
absolute. Any infraction is not a matter of irregularity; it is a
constitutional breach, and the courts are duty-bound to remedy
it.
9. In the aforesaid context, the appellants are entitled to bail as
Page No.# 17/17
recorded by the Learned Brother in his opinion.
JUDGE
Comparing Assistant