The Meghalaya High Court has affirmed that the principle of parity and mandatory compliance with Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, apply equally to spouses implicated in investigations, even where the underlying offences are non-bailable. In granting anticipatory bail to the petitioner, the Court reinforced that procedural safeguards under the BNSS cannot be bypassed merely due to familial association with the main accused.
Background & Facts
The Dispute
The petitioner, Smti. Kaushlya Gour, wife of Shri. Gopal Krishna Gour, seeks anticipatory bail in connection with a criminal investigation arising from an FIR lodged on 09.07.2024 by Smti. Suchona Ch. Sangma. The FIR, registered as Khanapara P.S. Case No. 25(7) of 2024, alleges financial mismanagement, misappropriation, and fraud against Shri. Gopal Krishna Gour, the petitioner’s husband. During the course of investigation, the petitioner’s name surfaced as being implicated in the alleged offences, prompting her to fear imminent arrest.
Key Facts
- The FIR was lodged on 09.07.2024 before the Superintendent of Police, Ri-Bhoi District
- The case was registered under Sections 381, 408, 120B, 417, 418, 420, and 34 IPC
- All the invoked sections carry punishments of up to or less than seven years’ imprisonment
- The petitioner has no prior criminal record and is not alleged to have committed any direct act of fraud or misappropriation
- The investigation is ongoing, with no chargesheet filed as of the date of hearing
- A co-accused, Shri Rahul Sharma, was granted anticipatory bail by the Supreme Court on 21.04.2025 in Criminal Appeal No. 2077 of 2025
Procedural History
- 09.07.2024: FIR registered at Khanapara Police Station
- Between July 2024 and March 2026: Investigation conducted; petitioner’s name emerged as implicated
- No notice issued under Section 35(3) BNSS to the petitioner prior to any arrest threat
- 07.05.2026: Petition for anticipatory bail filed before the High Court of Meghalaya
The Parties' Positions
The petitioner contends that she is not a principal offender but is being investigated solely due to her marital relationship with the main accused. She argues that since none of the offences attract punishment exceeding seven years, Section 35(3) of the BNSS mandates prior notice before arrest, which has not been issued. She further invokes the principle of parity, citing the Supreme Court’s grant of anticipatory bail to a co-accused in the same case.
The State does not oppose the grant of anticipatory bail but insists on conditions ensuring cooperation with the investigation.
Relief Sought
The petitioner seeks anticipatory bail in the event of arrest, with conditions to be imposed by the Court, and a declaration that no arrest can be effected without compliance with Section 35(3) BNSS.
The Legal Issue
The central question was whether Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 mandates prior notice before arrest for offences punishable with up to seven years’ imprisonment, and whether the principle of parity requires granting anticipatory bail to a spouse when a co-accused in the same case has already been granted such relief.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on the Supreme Court’s order dated 15.01.2026 in Satender Kumar Antil v. Central Bureau of Investigation and Anr., which held that “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 counsel argued that since no such notice was issued to the petitioner, any arrest would be illegal. Further, the counsel invoked the doctrine of parity, citing the Supreme Court’s grant of anticipatory bail to co-accused Shri Rahul Sharma on 21.04.2025 in the same case, arguing that denial of similar relief to the petitioner would violate Article 14 of the Constitution.
For the Respondent
The State did not contest the legal principles cited but emphasized the need for conditions to ensure the petitioner’s cooperation with the investigation. No substantive objection was raised to the grant of anticipatory bail, and the State accepted the applicability of Satender Kumar Antil and the parity argument.
The Court's Analysis
The Court examined the Supreme Court’s directive in Satender Kumar Antil and found it directly applicable. The Court noted that the offences under Sections 381, 408, 417, 418, 420 IPC, though non-bailable, carry maximum punishments of seven years or less. Therefore, the mandatory requirement of prior notice under Section 35(3) BNSS applies. The Court observed:
"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 further held that the grant of anticipatory bail to a co-accused in the same case creates a binding precedent of parity. Denying similar relief to the petitioner, who is not alleged to be a principal offender and has no history of non-cooperation, would be arbitrary and violative of the equality principle under Article 14. The Court rejected any notion that marital relationship alone justifies differential treatment in bail jurisprudence.
The Court also noted that the State did not oppose the prayer, and the conditions proposed were standard and reasonable. The Court emphasized that anticipatory bail is not a right but a discretionary remedy, and its grant in this case was justified by both statutory compliance and equitable considerations.
The Verdict
The petition was allowed. The Court directed that in the event of arrest, the petitioner shall be released on anticipatory bail subject to the following conditions: (i) she shall not abscond or tamper with evidence or witnesses; (ii) she shall appear before the court whenever required; (iii) she shall not leave India without prior permission; and (iv) she shall execute a personal bond of ₹50,000 with two local sureties of like amount. No costs were awarded.
What This Means For Similar Cases
Notice Under Section 35(3) BNSS Is Mandatory, Not Discretionary
- Practitioners must now insist on compliance with Section 35(3) BNSS in all cases involving offences punishable with up to seven years’ imprisonment
- Arrest without prior notice is illegal and can be challenged via writ petition or application for quashing
- The burden shifts to the prosecution to prove that notice was issued or that exceptional circumstances justified its omission
Parity in Bail Grants Extends to Family Members
- When a co-accused is granted anticipatory bail, denial of similar relief to a spouse or close relative in the same case may be deemed arbitrary
- Courts must justify differential treatment on grounds beyond familial association
- This precedent strengthens arguments for bail in cases involving non-principal accused, especially women or elderly relatives implicated due to association
Procedural Compliance Trumps Presumption of Guilt
- Merely being named in an investigation does not justify arrest
- Courts must distinguish between investigation and accusation
- The absence of a chargesheet and lack of direct allegations against the petitioner reinforce the need for procedural caution
