The Andhra Pradesh High Court has reaffirmed that arrest cannot be the default response in cases involving offences punishable with imprisonment of less than seven years. In a significant ruling under the new Bharatiya Nagarik Suraksha Sanhita, 2023, the Court emphasized that procedural safeguards for personal liberty must prevail over routine police action.
Background & Facts
The Dispute
The petitioner, a journalist and reporter, was named in FIR No.110 of 2025 registered at Penamaluru UPS, Krishna District, for an alleged offence under Section 351(2) of the Bharatiya Nyaya Sanhita, 2023 (assault with intent to outrage modesty). The complaint, filed on 27.12.2024, stemmed from a professional rivalry. The offence carries a maximum punishment of less than seven years’ imprisonment.
Procedural History
- 27.12.2024: Complaint filed by the second respondent
- 11.02.2025: FIR registered without prior notice to the petitioner
- 17.02.2026: Criminal Petition filed under Section 482 Cr.P.C. and Section 528 BNSS seeking quashing of proceedings and protection from arrest
Relief Sought
The petitioner sought quashing of the FIR and a direction to the investigating officer to issue a notice under Section 35(3) of the BNSS before considering arrest, arguing that the conditions for mandatory arrest were not met.
The Legal Issue
The central question was whether Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 mandates the issuance of a notice to an accused person before arrest in cases where the offence is punishable with imprisonment of less than seven years, and whether police discretion can override this statutory safeguard.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. CBI to argue that arrest is not automatic even under the new BNSS. He contended that Section 35(3) BNSS explicitly requires a notice to be issued before arrest for offences punishable with up to seven years, and that the investigating officer had failed to comply. He further cited Md. Asfak Alam v. State of Jharkhand to reinforce that these principles apply universally to non-heinous offences.
For the Respondent
The Public Prosecutor argued that the FIR disclosed a prima facie case and that the nature of the alleged offence warranted immediate investigation. He contended that the petitioner’s position as a journalist might lead to evidence tampering or witness intimidation, justifying immediate arrest. However, no specific material was adduced to substantiate this claim.
The Court's Analysis
The Court undertook a detailed review of the statutory framework under Section 35 of the BNSS, contrasting it with the earlier provisions of Section 41 Cr.P.C. The Court observed that Section 35(1)(b) of the BNSS retains the same threshold as the old Cr.P.C. - arrest is permissible only if conditions under Section 35(1)(b)(ii) are satisfied. Crucially, Section 35(3) mandates that a notice must be issued to the accused before arrest, unless exceptional circumstances exist.
"A notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule."
The Court emphasized that the Supreme Court in Satender Kumar Antil had clarified that arrest is a discretionary power, not a routine step. It further held that the guidelines in Arnesh Kumar, though framed under the Cr.P.C., remain fully applicable under the BNSS, as the legislative intent to prevent arbitrary arrest remains unchanged. The Court rejected the notion that the transition from Cr.P.C. to BNSS nullified these safeguards.
The Court also noted that the complainant’s voice must not be stifled, but that does not justify bypassing statutory procedure. The absence of any material indicating flight risk, tampering, or recurrence of offence rendered arrest unjustified at this stage.
The Verdict
The petitioner succeeded. The Court held that Section 35(3) of the BNSS mandates the issuance of a notice before arrest in offences punishable with less than seven years, and directed the investigating officer to comply with this requirement. The Court further directed strict adherence to the principles laid down in Arnesh Kumar, Satender Kumar Antil, and Md. Asfak Alam.
What This Means For Similar Cases
Notice Before Arrest Is Mandatory
- Practitioners must now insist on compliance with Section 35(3) BNSS in all cases where the maximum punishment is seven years or less
- Failure to issue notice renders arrest procedurally invalid and subject to challenge under Section 482 Cr.P.C. or Section 528 BNSS
- Police reports submitted for remand must include proof of notice issuance or justification for its omission
Judicial Scrutiny of Arrest Justifications Intensifies
- Magistrates must now scrutinize police reports for compliance with Section 35(1)(b) and Section 35(3) before authorizing detention
- Blanket approvals without recording reasons will invite contempt proceedings under Arnesh Kumar guidelines
- Defence counsel should file applications under Section 35(3) at the earliest stage to prevent unlawful detention
Arrest Is Not a Tool for Intimidation
- The judgment reinforces that arrest cannot be used as leverage in civil or professional disputes
- Journalists, public servants, and professionals facing non-violent allegations are now explicitly protected under this framework
- Any arrest without notice may be challenged as a violation of Article 21 and the rule of law
