The High Court of Telangana has reaffirmed that arrest cannot be automatic in non-heinous offences punishable with less than seven years of imprisonment, reinforcing the constitutional imperative against arbitrary detention under Article 21. This judgment clarifies procedural safeguards under the Bharatiya Nyaya Sanhita, 2023 and aligns with the Supreme Court’s jurisprudence on custodial rights.
Background & Facts
The Dispute
The petitioners, five individuals including family members of a married couple, were named as accused in Crime No. 53 of 2026 registered at Mahabubabad Town Police Station. The case involves allegations under Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS) for cruelty and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (DP Act), relating to demands for dowry and harassment.
Procedural History
- The complaint was filed by the wife of the first petitioner, alleging mental cruelty and dowry demands.
- The Investigating Officer registered the case and initiated proceedings without issuing a notice under Section 35(3) of BNSS.
- The petitioners, fearing arbitrary arrest, approached the High Court under Section 482 Cr.P.C. and Section 528 BNSS seeking quashment and stay of proceedings.
- No formal notice had been served, and no opportunity to explain had been granted prior to investigation escalation.
Relief Sought
The petitioners sought quashment of the criminal proceedings and a stay on arrest, arguing that the offences were non-bailable but not grave enough to justify immediate custodial interrogation. They contended that the Investigating Officer had bypassed mandatory pre-arrest procedural requirements.
The Legal Issue
The central question was whether Section 35(3) of the Bharatiya Nyaya Sanhita, 2023 mandates the issuance of a notice and opportunity to respond before arrest in offences punishable with imprisonment of less than seven years, and whether the guidelines in Arnesh Kumar v. State of Bihar continue to apply under the new criminal code.
Arguments Presented
For the Petitioner
Learned counsel argued that the offences under Section 85 BNS and Sections 3 and 4 DP Act attract a maximum punishment of five years, well below the seven-year threshold. Relying on Arnesh Kumar v. State of Bihar and Md. Asfak Alam v. State of Jharkhand, counsel emphasized that arrest is not automatic and must be preceded by a notice under Section 41-A Cr.P.C. or its equivalent Section 35(3) BNSS. They further cited the Telangana High Court’s own circular in ROC No. 1399/2023 mandating compliance with these safeguards.
For the Respondent
The Additional Public Prosecutor conceded that no notice had been issued but claimed the petitioners were avoiding service. He argued that the investigation was in its early stages and that the Investigating Officer was in the process of serving notice. He requested the Court to direct the petitioners to cooperate rather than quash proceedings.
The Court's Analysis
The Court examined the legislative intent behind Section 35(3) BNSS, which mirrors the spirit of Section 41-A Cr.P.C. and the Supreme Court’s directives in Arnesh Kumar. The Court noted that the provision explicitly requires the Investigating Officer to issue a notice requiring the accused to appear before the officer, unless there are compelling reasons to believe the accused will abscond or tamper with evidence.
"The mandate under Section 35(3) BNSS is not a mere formality but a constitutional safeguard against arbitrary arrest, especially in cases where the punishment does not exceed seven years."
The Court distinguished this case from those involving heinous crimes or flight risk, noting that no material suggested the petitioners would evade process. It further held that the principles in Md. Asfak Alam - which clarified that arrest must be a last resort - remain binding even under the new criminal laws. The Court rejected the notion that the transition from Cr.P.C. to BNSS nullified established safeguards. Instead, it affirmed that procedural compliance is non-negotiable.
The Verdict
The petitioners succeeded. The Court held that arrest cannot be automatic in offences punishable with less than seven years and directed the petitioners to appear before the Investigating Officer by 25.02.2026. The Officer was mandated to issue notice under Section 35(3) BNSS, follow Arnesh Kumar guidelines, and permit the petitioners to submit replies and documents before proceeding further.
What This Means For Similar Cases
Arrest Is Not Automatic
- Practitioners must now argue that Section 35(3) BNSS applies to all offences punishable with less than seven years, regardless of whether they are bailable or non-bailable.
- Police cannot proceed to arrest without first issuing notice unless there is documented evidence of flight risk or evidence tampering.
Procedural Compliance Is Non-Negotiable
- Failure to issue notice under Section 35(3) BNSS renders subsequent arrest illegal and grounds for quashment under Section 482 Cr.P.C.
- Courts must scrutinize investigation records for compliance before granting bail or allowing chargesheets to be filed.
Pre-Arrest Notice Is a Fundamental Right
- The right to respond before arrest is now a substantive right under Article 21, not a procedural formality.
- Petitioners may file applications under Section 482 Cr.P.C. to challenge non-compliance even before arrest occurs.
- Legal aid providers should advise clients to formally acknowledge receipt of notice to avoid claims of avoidance.
