The Telangana High Court has clarified that for offences punishable with less than seven years’ imprisonment, pre-arrest bail is not a matter of right but must be preceded by strict adherence to procedural safeguards under the Bharatiya Nagarik Suraksha Sanhita, 2023. This order reinforces the Supreme Court’s mandate in Arnesh Kumar v. State of Bihar that arrest must not be automatic, even in non-bailable cases.
Background & Facts
The Dispute
The petitioner, Pathan Ramjan, is arrayed as an accused in Crime No. 180 of 2026 registered at Ramchandrapuram Police Station, Cyberabad Commissionerate. The case involves allegations under Sections 74, 352, and 351(2) of the Bharatiya Nyaya Sanhita (BNS), 2023. The petitioner, aged 28, is employed in private service and resides in Hyderabad. He filed this petition under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) seeking direction for his release on pre-arrest bail in the event of arrest.
Key Facts
The alleged offences under BNS carry a maximum punishment of less than seven years
No arrest has been made as of the date of the petition
The petitioner has not been summoned or questioned by the Investigating Officer
The petitioner seeks protection from arbitrary arrest pending investigation
The petition was filed on 23.04.2026, prior to any arrest or formal charge
Procedural History
18.04.2026: Crime No. 180 of 2026 registered at Ramchandrapuram Police Station
23.04.2026: Criminal Petition No. 6084 of 2026 filed before the Telangana High Court under Section 482 BNSS
23.04.2026: Hearing conducted before Justice K. Sujana
23.04.2026: Order passed directing procedural compliance before arrest
The Parties' Positions
For the Petitioner
Sri Mohammed Aslam, Advocate, submitted that:
The offences alleged are non-heinous and punishable with less than seven years’ imprisonment
The petitioner is a law-abiding citizen with steady employment
No flight risk or tampering with evidence is apprehended
Arrest at this stage would be disproportionate and contrary to Arnesh Kumar v. State of Bihar
The petitioner is willing to cooperate fully with the investigation
For the Respondent
Sri M. Ramachandra Reddy, Additional Public Prosecutor, did not oppose the grant of pre-arrest procedural safeguards but emphasized the need for full cooperation from the accused during investigation.
Relief Sought
The petitioner sought:
Direction to the SHO, Ramchandrapuram PS, to release him on pre-arrest bail upon arrest
Protection from arbitrary arrest pending investigation
Compliance with Section 35(3) BNSS and Arnesh Kumar guidelines
The Legal Issue
The central question was whether, in cases involving offences punishable with less than seven years under the BNS, the Investigating Officer must first issue a notice under Section 35(3) BNSS and follow the procedural safeguards laid down in Arnesh Kumar v. State of Bihar before resorting to arrest.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on Arnesh Kumar v. State of Bihar to argue that arrest is not mandatory for offences punishable with less than seven years. He emphasized that Section 35(3) BNSS, which replaces Section 41-A CrPC, mandates a notice to appear before the Investigating Officer, allowing the accused to explain his position before arrest. He submitted that the petitioner is ready to comply with all procedural requirements and that arrest at this stage would violate the principles of proportionality and personal liberty under Article 21 of the Constitution.
For the Respondent
The State did not oppose the petitioner’s request for procedural compliance. The Additional Public Prosecutor acknowledged that the offences are not of a grave nature and that the accused has no prior criminal record. He agreed that the Investigating Officer should follow Section 35(3) BNSS and the Arnesh Kumar guidelines before considering arrest.
The Court's Analysis
The Court observed that the offences under Sections 74, 352, and 351(2) BNS are punishable with imprisonment extending up to three years, well below the seven-year threshold. The Court noted that the Supreme Court in Arnesh Kumar v. State of Bihar had laid down a comprehensive framework to prevent arbitrary arrests, particularly in cases where the punishment is less than seven years. The Court held that these guidelines are not mere suggestions but mandatory procedural requirements under the BNSS.
"The Investigating Officer must first issue a notice under Section 35(3) BNSS, afford the accused an opportunity to appear and explain, and record reasons if arrest becomes necessary. Failure to do so renders the arrest illegal and violative of Article 21."
The Court further emphasized that the petitioner’s willingness to cooperate, his stable employment, and absence of any prior criminal antecedents further support the application of these safeguards. The Court rejected the notion that pre-arrest bail is a substitute for procedural compliance. Instead, it held that compliance with Section 35(3) BNSS is the primary safeguard, and arrest should be the last resort.
The Court also noted that the petitioner’s cooperation is not optional but a duty under the law. He must furnish information and documents as required, and the Investigating Officer must consider these before filing the final report.
The Verdict
The Criminal Petition is disposed of with the following directions:
The petitioner shall appear before the Investigating Officer on or before 05.05.2026 between 11:00 a.m. and 5:00 p.m.
The Investigating Officer shall strictly comply with Section 35(3) BNSS and the guidelines in Arnesh Kumar v. State of Bihar
The petitioner shall submit his defence and produce all relevant documents as required
The Investigating Officer shall record the petitioner’s statements and consider them before filing the charge sheet
No arrest shall be made unless the Investigating Officer records specific reasons for believing that the conditions under Section 35(3) BNSS have been exhausted
All pending miscellaneous applications are closed
What This Means For Similar Cases
Procedural Compliance Is Non-Negotiable
Practitioners must now insist on Section 35(3) BNSS notice issuance in all cases involving offences punishable with less than seven years
Failure to issue notice renders any subsequent arrest illegal and subject to quashing under Section 482 BNSS
Courts will not entertain pre-arrest bail applications unless it is established that procedural safeguards were ignored
Cooperation Is a Legal Duty, Not a Privilege
Accused persons must proactively cooperate with investigations by submitting documents and statements
Refusal to cooperate may justify arrest, but mere non-appearance without notice does not
Legal counsel should advise clients to maintain written records of all submissions to the Investigating Officer
Pre-Arrest Bail Is Not a Substitute for Section 35(3)
Courts will not grant pre-arrest bail as a matter of routine
The remedy under Section 482 BNSS is available only when procedural norms are violated
The correct approach is to enforce Section 35(3) BNSS first; bail applications are secondary
