The Andhra Pradesh High Court has reaffirmed that automatic arrest in non-bailable offences punishable with imprisonment of less than seven years is unlawful unless strict procedural safeguards under Section 41-A of the Code of Criminal Procedure or Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, are followed. The judgment reinforces the Supreme Court’s directive in Arnesh Kumar v. State of Bihar, emphasizing that police and magistrates must exercise reasoned discretion before depriving an individual of liberty.
The Verdict
The petitioner, accused in a criminal case punishable with imprisonment of less than seven years, succeeded in quashing the arrest proceedings. The High Court held that the investigating officer must comply with Section 41-A of the CrPC or Section 35(3) of the BNSS by issuing a notice of appearance before resorting to arrest. The Court directed strict adherence to the Arnesh Kumar guidelines, emphasizing that arrest cannot be automatic or mechanical in such cases. The petition was disposed of with directions to the investigating officer to follow due process.
Background & Facts
The petitioner, Gudeti Balakoti Reddy, was named as Accused No.1 in Crime No. 04 of 2026 registered at T. Sunduru Police Station, Bapatla District. The case involved allegations under multiple sections of the Bharatiya Nyaya Sanhita, 2023, including Sections 191(2), 191(3), 115(2), 118(1), 351(2), 79, and 324(4), all of which carry a maximum punishment of less than seven years. The petitioner was not issued a notice under Section 41-A of the CrPC before arrest. He filed a petition under Section 482 CrPC (now Section 528 BNSS) seeking quashing of proceedings on grounds of procedural violation and abuse of process.
The prosecution did not dispute that the offences were non-heinous and punishable with less than seven years’ imprisonment. The record showed no material indicating flight risk, tampering with evidence, or threat to witnesses. The petitioner had cooperated with the investigation and was willing to appear before authorities. The lower authorities had proceeded directly to arrest without considering alternatives under Section 41-A CrPC.
The petition was filed before the Andhra Pradesh High Court in its original criminal jurisdiction, challenging the legality of the arrest and the failure to follow mandatory procedural safeguards.
The Legal Issue
The central question was whether the investigating officer is legally obligated to issue a notice under Section 41-A of the CrPC or Section 35(3) of the BNSS before arresting an accused in a case where the offence is punishable with imprisonment of less than seven years, even if the offence is non-bailable.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the arrest was illegal and arbitrary, violating the petitioner’s right to personal liberty under Article 21 of the Constitution. He relied on the Supreme Court’s judgment in Arnesh Kumar v. State of Bihar, which mandates that arrest must be a last resort in offences punishable with less than seven years. He contended that the investigating officer failed to apply the mandatory checklist under Section 41(1)(b)(ii) CrPC and did not record reasons for arrest. He further submitted that Section 35(3) BNSS, which replaces Section 41-A CrPC, imposes the same obligation and must be followed even during the transitional period.
For the Respondent
The Public Prosecutor did not contest the applicability of Arnesh Kumar but argued that the nature of the allegations - particularly those involving forgery and assault - justified immediate arrest. He submitted that the investigation required custodial interrogation and that the accused might influence witnesses. However, he failed to produce any specific material or record justifying the necessity of arrest over a notice under Section 41-A CrPC.
The Court's Analysis
The Court began by affirming that the Arnesh Kumar guidelines are not confined to Section 498-A IPC or dowry cases but extend to all offences punishable with imprisonment of less than seven years, whether with or without fine. The Court emphasized that the Supreme Court’s directions in Arnesh Kumar and its reiteration in Md. Asfak Alam v. State of Jharkhand are binding on all subordinate courts and investigating agencies.
"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 the investigating officer had not issued a notice under Section 41-A CrPC, nor had he recorded reasons for arrest under Section 41(1)(b)(ii). The absence of such procedural compliance rendered the arrest unlawful. The Court further held that Section 35(3) of the BNSS, which came into force on July 1, 2024, codifies the same principle and applies prospectively to all pending investigations.
The Court rejected the prosecution’s vague assertion of risk to investigation, stating that mere allegations without concrete evidence of tampering or flight risk cannot override statutory safeguards. It held that cooperation by the accused, willingness to appear, and absence of prior criminal antecedents are relevant factors that must be weighed before arrest.
The Court concluded that the failure to follow mandatory procedure not only violates statutory mandates but also amounts to contempt of the Supreme Court’s directions, exposing the officer to departmental and judicial consequences.
What This Means For Similar Cases
This judgment is a critical reminder to investigating agencies that arrest is not a default remedy in non-heinous offences. Practitioners must now insist on compliance with Section 41-A CrPC or Section 35(3) BNSS in all cases where the maximum punishment is less than seven years, regardless of whether the offence is bailable or non-bailable. Failure to issue a notice before arrest will render the arrest illegal and may lead to quashing of proceedings under Section 482 CrPC.
For defence counsel, this ruling provides a clear ground to challenge arbitrary arrests in bail applications and quashing petitions. Prosecutors must now prepare and submit a reasoned report justifying arrest under Section 41(1)(b)(ii) CrPC or Section 35(2) BNSS, failing which magistrates cannot authorize detention.
The judgment does not bar arrest in all cases but requires a case-specific, documented justification. It also clarifies that the transition from CrPC to BNSS does not nullify existing safeguards - Section 35(3) BNSS is a direct successor to Section 41-A CrPC and must be applied with equal rigor.
The Court’s directive to close pending miscellaneous petitions underscores the finality of this procedural compliance requirement.
