Gauhati High Court
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GAHC010138412026
2026:GAU-AS:10188
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Bail Appln./1842/2026
JITUMONI GOGOI
S/O SRI SUJYAKANTA GOGOI
R/O.- MADURIMOLAGAON
P.S. NAZIRA
DISTRICT- SIVASAGAR
ASSAM.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
------------
Advocate for : MR. A CHAUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
Date : 24.07.2026
Heard Mr. B.K. Mahajan, learned counsel for the accused applicant. Also
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heard Mr. B. Sarma, learned Additional Public Prosecutor appearing for the State.
2. This is an application filed under Section 483 BNSS praying for grant of bail
to the accused applicant Sri Jitumoni Gogoi, in connection with Sivasagar P.S. Case
No.93/2026 under Section 308(4)/351(4) of BNS, 2023 added Section 25(1A)/27 of
the Arms Act read with Section 3(5) of BNS, 2023.
3. The prosecution case in brief is that on 24.05..2026, the informant Lachit
Gogoi lodged an FIR before the Officer-in-Charge of Joysagar Police Out post
alleging inter-alia, that he is a businessman and since 01.05.2026, he has been
receiving continuous phone calls from mobile number 9862937365 to his phone
number 9365020376, demanding money; that the caller identifying as member of
banned organization “ULFA-Independent” has demanded Rs.20 lac from him. That
the caller threatened to kill the informant and his family member if the demand is
not made; that the informant had already informed the senior police authorities
about the incident; that subsequently on 23.05.2026, he received another call from
different mobile number bearing 897446023, demanding money be paid
immediately and threatened the informant to kill him if the amount is not paid
within two days.
On receipt of the FIR, police registered Sivasagar P.S. Case No.93/2026
under the aforementioned sections.
4. The learned counsel for the accused applicant submits that the accused
applicant has been apprehended by the Investigating Agency on 25.05.2026 after
3.00 pm when the accused applicant was injured during open fire by the police. He
submits that the accused applicant, was, thereafter admitted to jail sick room of
Sivasagar Civil Hospital on the same day i.e. on 25.05.2026. He submits that it is
clear that the accused applicant was in custody by the Investigating Agency from
25.05.2026 and he was never physically or virtually produced before the learned
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Magistrate on 26.05.2026. He submits that the accused applicant was shown to be
arrested at 7.00 pm on 28.05.2026. He also submits that that the accused
applicant was discharged from the said hospital on 28.05.2026 after his discharge,
the accused applicant was shown to be arrested on the same day, i.e. on
28.05.2026 at 7.00 pm by the Investigating Agency. He further submits that the
accused applicant was produced before the Court Below on 29.05.2026 with a
prayer for four days police custody. He submits that after expiry of the police
custody, the accused applicant was remanded to judicial custody and since then,
he has been languishing in jail.
5. The learned counsel for the accused applicant submits that as per the
forwarding report of the accused applicant dated 29.05.2026 and as per the
forwarding report of one of the co-accused namely Khipra Gogoi dated 26.05.2026,
the present accused applicant sustained injury during open fire by the Investigating
Agency on 25.05.2026 after 3.00 pm and thereafter, he was apprehended and
detained and sent to jail sick room on the same day. He submits that it is an
admitted fact that the accused applicant was never produced either physically or
virtually before the learned jurisdictional Court on 26.05.2026. He submits that
there is clear violation of Section 58 read with Section 62 of BNSS and Article 22(2)
of the Constitution of India, which will render the arrest of the accused applicant
illegal.
6. In view of the aforesaid, he submits that since there is a violation of Article
22(2) of the Constitution as well as Section 58 read with Section 62 of BNSS, the
whole arrest of the accused applicant is vitiated giving him an unfettered right to
be released on bail.
Case diary in the instant case has bee produced before this Court.
7. Mr. B. Sarma, learned Additional Public Prosecutor submits that the accused
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applicant is involved in demanding money, claiming to be a member of the banned
organization “ULFA-Independent” and there are sufficient incriminating materials
against the accused applicant in the case diary and therefore, he opposes the
prayer for bail to the accused applicant on the ground of violation of Article 22(2)
as well as Section 58 read with Section 62 of BNSS.
8. He further submits that the Investigating Agency, after the accused was
injured had to take him to the jail sick room and once he was recovered,
immediately he was produced before the learned Magistrate, therefore, he submits
that there is no violation of the aforesaid provision of the Constitution.
9. This Court has perused the case diary and also heard the submission made
by the learned counsel for the respective parties.
10. It is mentioned that the accused applicant had been injured during police
firing while the police wanted to arrest him and thereafter, the police took him to
jail sick room, after the police planned a trap to arrest the accused applicant along
with other co-accused persons while demanding extortion money.
11. From the case diary, it is found that the occurrence of firing and injuring of
the accused applicant happened after 3 pm in the afternoon on 25.05.2026and
thereafter he was taken to the jail sick room and thereafter, he was taken to
Sivasagar Civil Hospital and discharged from hospital on 28.05.2026 at about 4.00
pm. and he was produced before the learned CJM, Sivasagar on 29.05.2026.
12. This Court did not find any materials to suggest that any information about
his arrest has been communicated to the learned Judicial Magistrate having
jurisdiction.
13. It is also seen that the accused applicant was not produced within 24 hours
of his detention by the police though he was tkane into custody and had to be
taken to hospital. He was produced before the learned CJM only after his
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discharge, which is beyond 24 hours, as mandated under Article 22 of the
Constitution of India and Section 58 read with Section 62 of the BNSS.
14. The aforesaid fact makes it clear that the detention of the accused applicant
and non-production of the accused applicant within 24 hours of his arrest is in
violation of Article 22(2) of the Constitution of India and Section 58 read with
Section 62 of the BNSS.
15. The Supreme Court of India in a catena of decisions has held that violation of
Article 22(2) and 58 read with Section 62 BNSS is a violation of fundamental right
of a citizen and in such kind of violation, an arrested person is liable to be released
immediately on bail.
16. It is settled constitutional position that a arrestee shall have to be produced
before the nearest Magistrate within 24 hours excluding the time required for his
production before the Magistrate.
17. It is also a fact that there may be certain exceptions to such requirement, as
in the instant case, the accused applicant was injured and had to be taken to the
hospital. He had to remain in the hospital for some time before his discharge and
thereafter, he was taken for production before the Magistrate. However, this
exceptional circumstance was not seen to be intimated or informed by the arresting
authority to the Magistrate.
18. In fact, it is seen that one of the co-accused who was arrested in the same
incident but not injured was produced before the Magistrate within the stipulated
time of 24 hours. However, though the matter related to the same incident, no
intimation was given to the Magistrate about the injury of the accused applicant
and his hospitalization by the arresting authority in the forwarding report of the
aforesaid co-accused person. It is settled law that after arrest of a person, if he is
not released on bail, an order for remand to judicial custody is to be made.
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19. In terms of Section 187 of BNSS, a Magistrate has the power to authorize a
detention of an arrested person either in judicial custody or police custody subject
to conditions beyond 24 hours with sufficient reasons to be recorded.
In the instant case, no such order was passed by the Magistrate for
detention of the accused applicant and/or in hospital under police custody.
20. It is an admitted fact that the accused applicant was hospitalized after his
injury and he was produced before the concerned Magistrate only after expiry of
24 hours without any remand order or any order authorizing such detention by the
police.
In view of the aforesaid, there is a clear violation of the provision of Article
22(2) and Section 58 read with Section 62 BNSS.
21. Therefore, since there is a violation of Article 22(2) of the Constitution of
India, fundamental right to liberty guaranteed under Article 21 of the Constitution
of India has also violated and therefore, such violation gives right to the accused
applicant to go on bail.
22. In view of the aforesaid, it is directed that the accused applicant named
above shall be released from jail forthwith in connection with Sivasagar P.S. Case
No.93/2026 on furnishing bail bond of Rs.50,000/- with a surety of the like amount
to the satisfaction of the learned CJM, Sivasagar subject to the following
conditions:-
a) that the accused applicant shall fully cooperate with the investigation;
b) that the accused applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the case
so as to dissuade such person from disclosing such facts before the Investigating
Authority against the accused;
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c) that the accused applicant shall not leave the jurisdiction of the
learned CJM, Sivasagar without prior persmission of the aforesaid Court
23. In the event of violation of any of the above conditions, the bail granted to
the accused applicant would be liable to be cancelled on an application made by
the Investigating Authority, if so advised.
Bail application stands disposed of.
Return the case diary.
JUDGE
Comparing Assistant
