Violation of Arrest Procedure Renders Custody Illegal, Bail Must Follow: Gauhati High Court Frees Woman Accused in Child Abuse Case

“Non-compliance of Sections 50, 50A, 41B, and 46(4) CrPC violates Articles 21 and 22(1) — Arrest cannot stand merely because accused is educated”, In a significant ruling Gauhati High Court granted bail to Dr. Sangeeta Dutta, a woman accused in a case involving severe charges of child abuse, sexual offences under the POCSO Act, and cruelty under the Juvenile Justice Act. The Court observed that her arrest was “in clear violation of statutory safeguards and constitutional guarantees”, and therefore illegal.

The petitioner had been in custody for more than two and a half years, while only a fraction of the prosecution witnesses had been examined in a trial that was clearly progressing at a slow pace.

The petitioner, who was arrested on 7 May 2023, was accused of being involved in the abuse of a three-year-old foster child, allegedly subjected to starvation, physical violence, and confinement. Despite the grave nature of allegations, the Court found that the manner of arrest and the prolonged incarceration violated her fundamental rights, warranting her release.

“Prolonged Incarceration Without Trial Defeats the Essence of Article 21” — Court Criticises Delay and Bail Denial

The High Court placed strong reliance on Article 21 of the Constitution, stating that “right to life and personal liberty includes the right to a fair, just, and expeditious trial”, and remarked that continued custody of an undertrial prisoner beyond a reasonable time, especially where trial has barely progressed, “militates against constitutional values”.

The Court noted that although charges were framed as far back as June 2024, out of the 74 witnesses listed by the prosecution, only 15 had been examined till date. Observing that the remaining witnesses would take considerable time, the Court ruled that “delay in trial cannot be used as a weapon to curtail liberty indefinitely”.

In support of this finding, the Court cited the Supreme Court's decisions in Rabi Prakash v. State of Odisha and Mohd. Muslim @ Hussain v. State (NCT of Delhi), where bail was granted even under stringent laws like the NDPS Act, owing to long incarceration and trial delays.

“Prolonged judicial custody, when the prosecution has been unable to proceed at a reasonable pace, defeats the very spirit of justice,” the Court said.

“The Arrest Was Not Just Illegal — It Was Unconstitutional”: High Court Cites Multiple Procedural Violations

The High Court categorically held that Dr. Dutta’s arrest was illegal. It referred to several procedural violations under the Code of Criminal Procedure that struck at the root of her custody. The arresting authority failed to disclose the grounds of arrest in writing, did not notify her family or friends, failed to attest the arrest memo with an independent or family witness, and most crucially, arrested her during the night hours without judicial permission, all in breach of mandatory safeguards.

The Court quoted Section 46(4) CrPC and noted: “It is evident that only in exceptional circumstances, a woman can be arrested after sunset and before sunrise, and even then, only with prior judicial permission. None was taken here.”

Rejecting the State’s claim that she was arrested at 11:00 AM, the Court accepted the unrefuted assertion that Dr. Dutta was in fact picked up at 1:00 AM — a violation so glaring that it vitiated the entire arrest.

The Court strongly refuted the State’s argument that the accused was educated and aware of her arrest grounds and hence not prejudiced. In response, the Court observed:
“Violation of arrest procedure cannot be excused merely because the accused is educated or has access to legal representation. Constitutional rights apply universally, not selectively.”

“Parity Is Not a Favour, It Is a Right” — Co-Accused Including Husband Already Released

A key ground for the bail was the principle of parity. The Court recorded that Dr. Walliul Islam, the petitioner’s husband and the prime accused in the same case, was already granted bail by a co-ordinate bench of the High Court on 28 October 2025. Two other co-accused were granted bail by the trial court in May 2025.

The Court stated: “The petitioner stands on the same legal footing, having been charged under similar offences. To deny bail to her while others are free would offend the principle of parity and fair play.”

In affirming this principle, the Court cited Raghubir Singh v. State of Bihar, underscoring that “equal treatment before law demands similar relief to similarly situated accused”.

“Arrest Must Be in Accordance with Law — Not an Act of Discretion”: Gauhati High Court Reinforces D.K. Basu Safeguards

In a significant reaffirmation of the D.K. Basu v. State of West Bengal principles, the Court ruled that every arrest must be made in strict adherence to statutory procedures, failing which it becomes “unsustainable in law and violative of the Constitution”.

The Court stressed that procedural safeguards under Sections 50, 50A, 41B, and 46(4) are not optional. Quoting from the judgment:
“These provisions are not cosmetic. They are essential guarantees under Articles 21 and 22(1). Their breach renders the arrest and custody constitutionally infirm.”

The State’s attempt to rely on State of Karnataka v. Sri Darshan and argue that no prejudice had been caused to the accused due to non-compliance was rejected. The Court held that “prejudice is not the test — compliance with statutory mandate is.”

In response to the argument that Pankaj Bansal v. Union of India applied prospectively, the Court declared:
“Section 50 of the CrPC existed long before Pankaj Bansal. Its mandates were in force irrespective of the judgment date.”

Bail Granted With Stringent Safeguards to Prevent Abuse of Liberty

Granting bail, the Court imposed stringent conditions to ensure the accused does not misuse her liberty. These include a ₹1 lakh bond, two sureties including one government servant, surrender of official documents, travel restrictions, and a bar on contacting the victim or prosecution witnesses.

The Court concluded: “Liberty is not absolute, but it cannot be suspended indefinitely based on procedural lapses. Where statutory violations intersect with prolonged incarceration, bail becomes a constitutional necessity.”

Date of Decision: 18 November 2025