BA2/86/2025 of SHAHBAZ ALIAS GAZI Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Second Bail Application No. 86 of 2025

Shahbaz alias Gazi

..….....Applicant

Versus

State of Uttarakhand ….….Respondent

Present:- Mr. Parikshit Saini, Advocate for the applicant.

Mr. Vijay Khanduri, Brief Holder for the State.

Hon’ble Ravindra Maithani, J. (Oral)

Applicant is in judicial custody in FIR/Case Crime No. 457 of 2024, under Sections 147, 148, 149, 307, 323, 324, 452, 504, 506 IPC, Police Station Laksar, District Haridwar. He has sought his release on bail.

2. This is the second bail application. The first bail application, being BA1 No.1037 of 2024, was rejected on 24.08.2024.

3. record.

Heard learned counsel for the parties and perused the

4. Learned counsel for the applicant would submit that the applicant has not been communicated in writing the grounds of arrest, therefore, he is entitled to bail. He would refer to the principle of law as laid down in the case of Vihaan Kumar v. State of Haryana and another, 2025 SCC OnLine SC 269. He would also submit that this Court has already considered this as ground of bail in First Bail Application No. 2528 of 2024, Dinesh Kashyap v. State of Uttarakhand, decided on 03.04.2025 as well as in First Bail Application No. 1884 of 2024, Vishal Sindhu v. State of Uttarakhand, decided on 16.05.2025.

5. Learned State Counsel admits that the grounds of arrest were not communicated to the applicant in writing.

6. In the case of Vihaan Kumar (supra), in para 19, the Hon’ble Supreme Court discussed the requirement under Section 50 of the Code as well as the mandate of Article 22(1) the Constitution of India, which reads as follows:-

“19. An argument was sought to be canvassed that in view of sub-Section (1) of Section 50 of CrPC, there is an option to communicate to the person arrested full particulars of the offence for which he is arrested or the other grounds for the arrest. Section 50 cannot have the effect of diluting the requirement of Article 22(1). If held so, Section 50 will attract the vice of unconstitutionality. Section 50 lays down the requirement of communicating the full particulars of the offence for which person is arrested to him. The ‘other grounds for such arrest’ referred to in Section 50(1) have nothing to do with the grounds of arrest referred to in Article 22(1). Section 47 of the BNSS is the corresponding provision. Therefore, what we have held about Section 50 will apply to Section 47 of the BNSS.”

7. bare reading of the settled law, makes its abundantly clear that Article 22(1) of the Constitution of India is not subject to the provisions of Section 50 of the Code. The Constitutional mandate of Article 22(1) has to be fulfilled and if any arrest is made in its defiance, the dictum as has been laid down in the case of Vihaan Kumar (supra) in para 21(f) would entail, which reads as follows.

e)…… f) When 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 ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Article 21 and 22 of the Constitution is established.”

8. In the instant case, admittedly the grounds of arrest have not been communicated in writing to the applicant.

9. Having considered, this Court is of the view that it is case fit for bail and the applicant deserves to be enlarged on bail.

10. The bail application is allowed.

11. Let the applicant be released on bail, on his executing personal bond and furnishing two reliable sureties, each of the like amount to the satisfaction of the court concerned.

Avneet/

(Ravindra Maithani, J.)23.05.2025