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2026 Supreme(Online)(Gau) 16968
HIGH COURT OF GAUHATI
Arun Dev Choudhury, Pranjal Das, JJ
Hemkholal Mate – Appellant
Versus
National Investigation Agency – Respondent
Crl.A./433/2025 | Crl.A./345/2025
Important Points
Subject
Criminal Law - Bail and Remand
Act Referred
Code of Criminal Procedure, 1973: S.50, S.50A, S.41B
Unlawful Activities (Prevention) Act, 1967: S.16, S.43D(5)
Bharatiya Nagarik Suraksha Sanhita, 2023: S.47, S.48
Indian Penal Code, 1860: S.302, S.400, S.120B, S.121, S.122, S.34
Headnote
(B) Bail - Statutory restrictions - Violation of constitutional mandate under Article 21 and 22(1) - Right to bail prevails over statutory restrictions imposed by UAPA or other special statutes once constitutional breach is established. (Para 13, 22)
Facts of the case:
Appellants were arrested for their alleged involvement in the killing of a police officer. Investigation was taken over by the National Investigation Agency. Bail petitions filed by the appellants were rejected by the trial court. Appellants challenged the rejection, contending that the procedure for arrest defined under the Criminal Procedure Code was not followed, specifically alleging a failure to communicate the grounds of arrest and a defective arrest memo, thus violating their constitutional rights.
Findings of Court:
The Court held that the prosecution failed to demonstrate compliance with the mandatory requirements of informing the accused of the grounds of their arrest and informing their family members. The absence of contemporaneous records for such communication and the failure to obtain signatures on the arrest memo rendered the custody untenable.
Issues: Whether the failure to provide the grounds of arrest in writing to the accused and their nominees serves as sufficient ground to grant bail despite the seriousness of the charges and statutory bars on bail.
Ratio Decidendi: The court maintained that Article 22(1) is a constitutional safeguard, not a mere procedural formality. Any non-compliance with the duty to inform the accused of the grounds of arrest in a language they understand vitiates the arrest, and this fundamental right to life and liberty under Article 21 takes precedence over statutory restrictions on bail.
Result: Appeals allowed; bail granted.
For the Appellants/Petitioners: Noorjaman Ahmed, M A Basumatary, N Ahmed, N J Dutta
For the Respondents: SC NIA
| Table of Content |
|---|
| 1. factual background regarding arrest procedure and bail rejection. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. arguments and constitutional frameworks concerning communication of arrest grounds. (Para 7 , 8 , 9 , 10 , 11) |
| 3. judicial precedents on mandatory arrest procedures as constitutional safeguards. (Para 12 , 13 , 14 , 15) |
| 4. analysis of the specific case facts against constitutional requirements. (Para 16 , 17 , 18 , 19 , 20 , 21) |
| 5. final ruling and reasoning for granting bail due to procedural non-compliance. (Para 22 , 23 , 24 , 25 , 26 , 27) |
Linked Case : Crl.A./345/2025
PHILIP KHAIKHOLAL KHONGSAI
S/O - LT MARCUS KHONGSAI
R/O - NEW MOREH WARD NO. 8
MANIPUR
PIN - 795131
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
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 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.
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. S
