Gauhati High Court
Bail Appln./2050/2026 of SHANJIBUL ISLAM Vs THE STATE OF ASSAM AND ANR on 6 September 2026
GAHC010153052026 2026:GAU-AS:12931 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2050/2026 SHANJIBUL ISLAM S/O SABED ALI, RESIDENT OF VILLAGE BALIKURI GAON, P.S. KALGACHIYA, DISTRICT BARPETA, ASSAM. VERSUS THE STATE OF ASSAM AND ANR
GAHC010153052026
2026:GAU-AS:12931
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2050/2026
SHANJIBUL ISLAM
S/O SABED ALI, RESIDENT OF VILLAGE BALIKURI GAON, P.S.
KALGACHIYA, DISTRICT BARPETA, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM
2:JAKIR HUSSAIN
S/O LATE ABDUL KHALEK
RESIDENT OF VILLAGE BORKUR CHAPORI
P.S. BHURAGAON
DISTRICT MORIGAON
ASSAM.
PHONE NO. 872090961
Advocate for the Petitioner : MR F HAQUE, MR A ISLAM
Advocate for the Respondent : PP, ASSAM, MS T PARASHAR, AMICUS CURIAE R2
BEFORE
HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA
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ORDER
Date : 07.09.2026 Heard Mr. F. Haque, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor appearing for the State of Assam and Ms. T. Parashar, learned Amicus Curiae for respondent No. 2.
2. This is an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 whereby the petitioner, namely, Shanjibul Islam has prayed for releasing him on bail after he was arrested on 02.07.2026 in connection with Bhuragaon Police Station Case No. 54/2026 registered under Sections 64 of Bharatiya Nyaya Sanhita, 2023 read with Section 6 of POCSO Act.
3. The allegation against the petitioner is that the petitioner was known to the informant family and he went to the house of the informant on 01/07/2026 and stayed in the house of the informant. On the night of 01/07/2026, after having dinner and after the inhabitants of the house went to sleep, the petitioner went to the bedroom of the minor daughter of the informant, aged about 17 years and forcefully committed rape upon her.
4. The learned counsel for the petitioner submits that it is highly improbable that the petitioner could have committed rape upon the victim when all other family members were present in the house and it is also submitted that although the occurrence allegedly took place at 11:00 PM in the night, it was only in the morning at 6:00 AM that the victim reportedly informed the incident to her mother. Petitioner was forwarded to judicial custody on 02/07/2026 and since then has spent about 67 days in custody.
5. It is further submitted that the allegations against the petitioner are totally false. It is also submitted that notice under section 48 BNS was not served upon the family members of the petitioner and the memorandum of arrest is also defective as it does not contain the signature of any witness.
6. Perusal of the memorandum of arrest available in the case diary reveals that no signature of any family member or any respectable person of the locality, where the arrest was effected has been taken on the said memorandum of arrest, which has been held to be mandatory. Further to that, it is the case of the prosecution itself that the notice under section 48 of the BNS by which the grounds of arrest are required to be communicated to the family members, /friends/nominated person of the accused was not physically furnished to any of the aforesaid categories of persons, but was sent by WhatsApp and by WT message.
7. However, a perusal of the WhatsApp message, which is a photograph of the notice under Section 48 BNSS, 2023 available in the case diary, does not reveal the date on which it was communicated to the family member of the petitioner. The WT message said to have been sent to the concerned police station, as available in the case diary, appears only to be an intimation of arrest and does not contain the grounds of arrest.
8. And a perusal of the order of remand passed by the learned Magistrate, indicates that no defence counsel was available to oppose the remand prayer and a legal aid counsel was therefore stated to have been appointed, but apparently, as is discernible from the aforesaid order of remand, no effective representation was made by any such legal aid counsel opposing the prayer for remand.
9. Considering the aforesaid deficiencies in procedure amounting to non- compliance with the mandatory provisions of law, as aforesaid, I am of the view that prejudice was caused to the petitioner on account of the failure of the prosecution/police to follow the mandatory provisions of the law as mandated by Section 62 BNSS, 2023.
10. The above being said, I am of the view that the petitioner is entitled to be released on bail. Accordingly, it is directed that the petitioner shall be released on a bail bond of ₹50,000/- (Rupees fifty thousand) only with two sureties of like amount to the satisfaction of the learned Eleka Magistrate/Jurisdictional Court in connection with Bhuragaon Police Station Case No. 54/2026 registered under Sections 64 of Bharatiya Nyaya Sanhita, 2023 read with Section 6 of POCSO Act.
11. It is further provided that the petitioner upon his release shall not try to intimidate or influence the witnesses or the victim or any other person acquainted with the facts and circumstances of the case and shall regularly participate in the trial if one commences.
12. Accordingly, the bail application stands disposed of.
13. Send back the case diary. JUDGE Comparing Assistant