Non-compliance with the mandatory requirement of having an Arrest Memo attested by a witness under Section 36 of the BNSS, 2023, renders the arrest illegal, violating fundamental rights under Articles 21 and 22 of the Constitution, thereby entitling the accused to bail.

ORDER

Heard Mr. P. Bordoloi, learned counsel appearing on behalf of the accused-applicant. Also heard Mr. B. Sarma, learned Addl. Public Prosecutor, representing the State respondent as well as Ms. P. Das, learned Amicus Curiae, representing the respondent no. 2.

2. This is an application filed under Section 483 of the BNSS, 2023, praying for grant of bail to the accused in connection with Special (POCSO) Case No. 95/2025, registered under Section 75(2) of the BNS, 2023, read with Section 10 of the POCSO Act, 2012, pending before the Court of learned Addl. Sessions’ Judge-cum-Special Judge (POCSO), Biswanath Chariali, Assam.

3. As per the FIR lodged on 03.09.2025, the allegation against the accused is that he, being an Associate Professor at Biswanath College, had given a lift in his car to the daughter of the informant at around 6.30 PM on 23.08.2025. During the course of the ride back to her residence, it is alleged that the accused inappropriately touched her. It is further alleged that upon reaching her house, the accused expressed a desire to teach her and while doing so, again allegedly touched her inappropriately.

4. Although the alleged incident occurred on 23.08.2025, the FIR was lodged only on 03.09.2025, as the daughter of the informant did not disclose the incident to her parents at the relevant time. It is stated that on 02.09.2025, the victim girl addressed a written complaint to the Chairperson of the Internal Committee (Sexual Harassment Committee) of Biswanath College, regarding the alleged incident, and thereafter, on 03.09.2025, the instant FIR was lodged.

5. Upon receipt of the FIR, the police registered Biswanath Chariali P.S. Case No. 158/2025, under the aforesaid Sections. After investigation, police filed the Charge-sheet, vide Charge-sheet No. 161125, dated 29.11.2025, against the accused and thereafter, charges were framed against the accused by the Special Judge (POCSO), Biswanath Chariali, under Section 75(2) of the BNS, 2023, read with Section 10 of the POCSO Act.

6. The Trial Court record in connection to the Special (POCSO) Case No. 95/2025 has been produced before this Court. From the order dated 20.01.2026, it is seen that the PWs were absent on that day and therefore, fresh summons were directed to be issued to the PWs. Next date was fixed on 03.02.2026. As per the submission of the counsel appearing for the petitioner, none of the PWs appeared. It is also seen that the accused is in jail custody for the last 78 days. It is seen that an affidavit has been filed by the respondent no. 2 (the informant) to the effect that the respondent no. 2 shall not have any objection if the accused is granted bail by this Court, as the concerned FIR was lodged by her due to some misunderstanding of facts. In this connection, the relevant paragraphs from the affidavit are extracted herein below: -

“3. That, the deponent states that, the deponent has filed her Vakalatnama in the said case and that, there is no objection on the part of the deponent if the petitioner is granted bail by this Hon’ble Court.

4. That, the deponent states that, the said FIR was lodged by the deponent before the Biswanath Chariali Police Station due to some mis-understanding of facts.”

7. It is to be noted herein that, that accused had earlier applied for a pre-arrest bail, vide AB No. 2272/2025, which was rejected by this Court, vide it’s order dated 18.11.20