The Rajasthan High Court has reinforced the principle that arrest cannot be the default response in cases involving non-bailable offences punishable by less than seven years of imprisonment. Citing the Supreme Court’s landmark ruling in Arnesh Kumar v. State of Bihar, the Court directed that prior notice must be issued to the accused before arrest, unless exceptional circumstances justify immediate detention.
The Verdict
The petitioner won. The Rajasthan High Court held that arrest in cases involving offences under Sections 419, 420 and 120-B IPC, which carry a maximum punishment of less than seven years, cannot be immediate or automatic. The Court directed that the Investigating Agency must issue a 15-day prior notice to the petitioner before effecting arrest, unless necessity is demonstrably established. The petition for quashing was disposed of with this procedural safeguard.
Background & Facts
The petitioner, Hemant Sharma, was named in FIR No. 427/2025 registered at Police Station Sadar, Chittorgarh, for alleged offences under Sections 419, 420 and 120-B of the Indian Penal Code. The allegations pertained to a commercial dispute involving alleged fraudulent representation and criminal conspiracy in a property transaction. The Investigating Agency moved to arrest the petitioner without prior notice or opportunity to cooperate. The petitioner filed a criminal petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), seeking quashing of the FIR and protection from arrest. The State opposed the petition, arguing that the gravity of the allegations warranted immediate arrest. The petitioner had not been questioned or summoned prior to the proposed arrest, and no attempt was made to assess whether his presence could be secured through less intrusive means.
The Legal Issue
The central question was whether the Investigating Agency is required to issue prior notice before arresting an accused in cases involving non-bailable offences punishable by less than seven years, in light of the Supreme Court’s directive in Arnesh Kumar v. State of Bihar.
Arguments Presented
For the Petitioner
Learned counsel for the petitioner relied on Section 35 of BNSS, which replaces Section 41 of CrPC, and emphasized that arrest must be a last resort. He cited Arnesh Kumar v. State of Bihar, where the Supreme Court held that arrest is not mandatory for offences punishable with up to seven years, and that police must record reasons for arrest and consider alternatives. He argued that the petitioner was a settled resident with no history of evasion, and that the allegations, even if true, were civil in nature with criminal overtones. The absence of any prior summons or inquiry rendered the proposed arrest arbitrary and violative of Article 21.
For the Respondent
The Public Prosecutor contended that the offences under Sections 419 and 420 IPC are serious and involve deception with intent to defraud, warranting immediate arrest to prevent tampering with evidence or influencing witnesses. He argued that the nature of the transaction and the scale of alleged loss justified a proactive approach. He did not dispute the Arnesh Kumar principle but claimed it was inapplicable because the case involved a complex conspiracy under Section 120-B, which allegedly elevated the seriousness beyond ordinary cheating.
The Court's Analysis
The Court undertook a structured review of the statutory framework under Section 35 BNSS, which mandates that arrest shall be made only when necessary, and that the reasons for such necessity must be recorded. The Court noted that the offences alleged, while non-bailable, carry a maximum punishment of seven years under Section 420 IPC, placing them squarely within the ambit of Arnesh Kumar. The Court observed that the FIR did not contain any material suggesting the petitioner was likely to abscond, destroy evidence, or intimidate witnesses. The absence of prior summons or inquiry was deemed a procedural lapse.
"The dictum of the Hon'ble Supreme Court in Arnesh Kumar vs. State of Bihar... squarely applies mutatis mutandis to the present case."
The Court rejected the State’s argument that the inclusion of Section 120-B elevated the case beyond Arnesh Kumar’s scope. It held that the nature of the underlying offence - cheating - remains determinative, and conspiracy under Section 120-B cannot be used to circumvent the procedural safeguards established for non-heinous offences. The Court emphasized that the presumption of innocence and the right to liberty under Article 21 require that arrest be preceded by a reasoned assessment, not reflexive action.
What This Means For Similar Cases
This judgment reaffirms that Arnesh Kumar is not confined to dowry-related cases but applies universally to any non-bailable offence punishable by up to seven years. Practitioners must now routinely assess whether arrest is truly necessary before filing chargesheets or moving for remand. The 15-day notice requirement, while not absolute, creates a procedural hurdle that investigators must overcome with documented justification. Failure to issue notice may render arrest illegal and invite contempt proceedings. This ruling also empowers defence counsel to challenge arrests at the earliest stage, particularly where the accused is a known resident with no prior record. However, the judgment leaves room for immediate arrest in cases involving flight risk, destruction of evidence, or threats to public order - provided such grounds are explicitly recorded.
