GUWAHATI, India, Sept. 24 -- Gauhati High Court issued the following order on Aug. 25:
1. The petitioner has approached this Court seeking to invoke the inherent powers of the Court available under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [BNSS] on being aggrieved by a Notice issued under Section 179, BNSS on 06.08.2025 through WhatsApp by the Investigating Officer [I.O.] of the case seeking his presence before him on that very day.
2. I have heard Mr. N.H. Barbhuiya, learned counsel for the petitioner and Mr. R.R. Kaushik, learned Additional Public Prosecutor for the respondent State of Assam.
3. Mr. Barbhuiya, learned counsel for the petitioner has submitted that the petitioner has been arraigned as an accused in connection with Chapar Police Station Case no. 119/2025 and was arrested during the course of investigation of the said case. On an application being made for his release on bail, the petitioner was granted bail in connection with Chapar Police Station Case no. 119/2025 by the Court of learned Judicial Magistrate, First Class [JMFC], Bilasipara on 05.08.2025. It has been submitted that the impugned Notice dated 06.08.2025 was served upon the petitioner at 12-20 p.m. on 06.08.2025 through WhatsApp. By the Notice, the petitioner was directed to appear before the I.O. of Chapar Police Station Case no. 119/2025 at 10-00 a.m. on 06.08.2025. Mr. Barbhuiya has made two fold submissions, firstly, a Notice under Section 179, BNSS could not have been served upon the petitioner as the petitioner has already been arraigned as an accused in the case and therefore, he cannot be considered as a witness as the provisions of Section 179, BNSS is meant only for witnesses; and secondly, a Notice under Section 179, BNSS could not have been served upon the petitioner through WhatsApp as such mode of service is not contemplated under the provisions of the BNSS.
4. Mr. Kaushik, learned Additional Public Prosecutor has responded by submitting that an accused can be embraced within the ambit and scope of Section 179, BNSS, which provision is pari materia to Section 160 of the Code of Criminal Procedure, 1973 ['the Code', or 'CrPC', for short]. An accused like a witness is also a person who can be considered to be acquainted with the facts and circumstances of the case and therefore, the petitioner cannot avoid the obligation of responding the Notice issued under Section 179, BNSS only on the ground that he has already been arraigned as an accused because of his arrest. Mr. Kaushik has further submitted that as the petitioner was allowed to go on bail by an Order dated 05.08.2025, the I.O. of the case deemed it proper, in the interest of fair and expeditious investigation, to seek presence of the petitioner before him on the next date of his release i.e. on 06.08.2025 without having any knowledge about the facts projected in this criminal petition. Mr. Kaushik has placed reliance in the decision of the Hon'ble Supreme Court of India in Nandini Satpathy vs. P.L. Dani and another, [1978] 2 SCC 424.
*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=A9S7c5LDIsB6RXaCf816x4FZH%2FcHwmg9Sobe7faOEtE%2BtuzAfhhyX4%2FOCwUYva23&caseno=Crl.Pet./979/2025&cCode=1&cino=GAHC010179362025&state_code=6&appFlag=)
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