The Andhra Pradesh High Court has reaffirmed that arrest cannot be automatic even in cases involving serious allegations, where the offence carries a maximum punishment of less than seven years. This judgment reinforces the constitutional imperative against arbitrary detention and mandates strict adherence to procedural safeguards under the new Bharatiya Nagarik Suraksha Sanhita, 2023.
Background & Facts
The Dispute
The petitioners, Chalagalla Venkata Rao and Chalagalla Padmanabhudu, were named as Accused Nos. 9 and 10 in Crime No. 440/2025 registered at Gandepalli Police Station, Kakinada District. The case involves alleged offences under Sections 318(2), 336(3)(2), 340(2), 329(3), 61(2) read with 3(5) of the Bharatiya Nyaya Sanhita, 2023, and Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023. All these offences are punishable with imprisonment not exceeding seven years.
Procedural History
- 2025: Crime No. 440/2025 registered against the petitioners based on a complaint by Pyla Nookaraju.
- 2026: Petitioners filed Criminal Petition No. 385/2026 under Section 482 Cr.P.C. and Section 528 BNSS, seeking quashing of proceedings and protection from arrest.
- 2026: Interim relief sought via IA No. 1/2026 for stay of arrest and further proceedings.
- The investigation was ongoing, with no chargesheet filed at the time of hearing.
Relief Sought
The petitioners sought quashing of the criminal proceedings and a direction to the investigating officer to refrain from arresting them, arguing that arrest was neither necessary nor proportionate given the nature of the offences and their cooperative conduct.
The Legal Issue
The central question was whether arrest is mandatory for offences punishable with imprisonment of less than seven years under the Bharatiya Nagarik Suraksha Sanhita, 2023, or whether the procedural safeguards under Section 35(3) BNSS and the guidelines in Arnesh Kumar v. State of Bihar continue to apply.
Arguments Presented
For the Petitioner
The learned counsel argued that the offences imputed were non-heinous, non-violent, and punishable with less than seven years’ imprisonment. Reliance was placed on Arnesh Kumar v. State of Bihar and Md. Asfak Alam v. State of Jharkhand, contending that arrest cannot be automatic and that Section 41-A Cr.P.C. (now Section 35(3) BNSS) mandates issuance of notice before arrest. The petitioners had consistently cooperated with the investigation and posed no flight risk.
For the Respondent
The Public Prosecutor did not dispute the applicability of Arnesh Kumar but argued that the gravity of allegations - relating to criminal intimidation and obstruction of public duty - justified potential arrest. However, no specific material was presented to demonstrate why less intrusive measures under Section 35(3) BNSS would be inadequate.
The Court's Analysis
The Court undertook a detailed review of the constitutional principles underlying personal liberty under Article 21 and the statutory framework governing arrest under Section 41 Cr.P.C. and its successor, Section 35 BNSS. It emphasized that the Supreme Court’s directives in Arnesh Kumar were not confined to dowry-related cases but explicitly extended to all offences punishable with imprisonment of up to seven years.
"The directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine."
The Court noted that Section 35(3) BNSS mirrors Section 41-A Cr.P.C., requiring the investigating officer to issue a notice requiring the accused to appear before the police before resorting to arrest. The Court held that the investigating officer had failed to demonstrate any reason why this mandatory pre-arrest procedure was not followed. The absence of such compliance rendered the threat of arrest procedurally flawed.
The Court further observed that mere allegation, without evidence of flight risk, tampering, or obstruction, cannot justify deprivation of liberty. The petitioners’ age, social standing, and prior cooperation were relevant factors in favor of non-arrest.
The Verdict
The petitioners succeeded. The Court held that arrest cannot be automatic for offences punishable with less than seven years’ imprisonment and directed the investigating officer to strictly comply with Section 35(3) of the BNSS and the guidelines in Arnesh Kumar v. State of Bihar. All pending interim applications were closed.
What This Means For Similar Cases
Arrest Is Not Automatic for Non-Heinous Offences
- Practitioners must now argue that any arrest for offences under seven years requires a recorded application of mind under Section 35(3) BNSS.
- Police cannot rely on the nature of the allegation alone; they must demonstrate necessity under Section 35(1) BNSS.
- Failure to issue notice under Section 35(3) renders arrest illegal and subject to contempt proceedings.
Pre-Arrest Notice Is Mandatory, Not Discretionary
- The notice under Section 35(3) BNSS is not a formality - it is a statutory precondition.
- Courts will now scrutinize whether the investigating officer has recorded reasons for bypassing notice.
- Petitioners in similar cases may seek quashing on grounds of procedural violation, even before chargesheet filing.
Judicial Scrutiny of Arrest Decisions Is Now Heightened
- Magistrates must record satisfaction that arrest is necessary before authorizing detention.
- High Courts will entertain Section 482 petitions to quash proceedings where Arnesh Kumar guidelines are ignored.
- Lawyers should routinely file Section 482 petitions where arrest is threatened without compliance with Section 35(3) BNSS.
