The Telangana High Court has clarified that the procedural safeguards under the Bharatiya Nagarik Suraksha Sanhita, 2023, are mandatory even when an accused is alleged to be uncooperative. The court dismissed a petition to quash an FIR under Sections 406 and 420 IPC not on merits, but by directing strict compliance with statutory notice requirements, reinforcing that due process cannot be bypassed merely because of alleged non-cooperation.
Background & Facts
The Dispute
The petitioner, Sri Pallapu Laxmi Narayana, Managing Director of Sunrtha Infrastructures Pvt. Ltd., was named as an accused in FIR No. 152 of 2026, registered on 12.02.2026 at Neredmet Police Station, Medchal-Malkajgiri District, under Sections 406 (criminal breach of trust) and 420 (cheating) of the Indian Penal Code, 1860. The allegations relate to alleged financial irregularities and failure to fulfill monetary obligations towards Respondent No. 2, Sri Nanduti Gopal, concerning a business transaction.
Key Facts
- The petitioner is alleged to have received funds from Respondent No. 2 for a specific project, but allegedly failed to deliver the agreed services or return the money.
- No formal civil suit or complaint was filed by Respondent No. 2 before the initiation of criminal proceedings.
- The offences under Sections 406 and 420 IPC are punishable with imprisonment extending up to seven years, but the Investigating Officer proceeded without issuing a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
- The petitioner has not been arrested as of the date of the petition.
- The petitioner submitted representations through counsel, asserting that the dispute is civil in nature and that criminal proceedings are an abuse of process.
Procedural History
- 12.02.2026: FIR No. 152 of 2026 registered at Neredmet Police Station under Sections 406 and 420 IPC.
- Before 10.04.2026: Investigating Officer failed to issue notice under Section 35(3) BNSS before initiating investigation or considering arrest.
- 05.04.2026: Criminal Petition No. 5334 of 2026 filed before the Telangana High Court seeking quashing of FIR and stay of proceedings.
- 10.04.2026: Hearing before Justice J. Sreenivas Rao; both parties appeared through counsel.
The Parties' Positions
For the Petitioner
- The dispute is purely civil, arising from a commercial transaction, and does not satisfy the ingredients of Sections 406 or 420 IPC.
- The FIR was registered without following mandatory pre-arrest procedures under Section 35(3) BNSS.
- The Investigating Officer acted in violation of the guidelines laid down in Arnesh Kumar v. State of Bihar by skipping notice and proceeding directly toward arrest.
- The petitioner is willing to cooperate and submit a written reply with documents if given a fair opportunity.
For the Respondent (State)
- Specific allegations of cheating and breach of trust are made against the petitioner, which prima facie attract Sections 406 and 420 IPC.
- The petitioner has not cooperated with the investigation and failed to respond to informal police inquiries.
- The non-appearance of the petitioner at the police station justifies proceeding without notice.
Relief Sought
The petitioner sought:
- Quashing of FIR No. 152 of 2026 under Sections 406 and 420 IPC.
- Stay of all further proceedings, including arrest or summons.
The Legal Issue
The central question was whether the Investigating Officer can proceed with criminal investigation and consider arrest under Sections 406 and 420 IPC without first issuing a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, and whether non-cooperation by the accused absolves the police of this statutory obligation.
Arguments Presented
For the Appellant/Petitioner
The petitioner’s counsel relied on Arnesh Kumar v. State of Bihar to argue that arrest cannot be the first step in investigation for offences punishable with less than seven years’ imprisonment. He emphasized that Section 35(3) BNSS mandates a notice to appear before the Investigating Officer, providing an opportunity to explain, before any coercive action. He contended that the absence of such notice renders the investigation procedurally flawed and violative of Article 21. He further argued that the dispute, being commercial and monetary, is more appropriately resolved in a civil forum, and the criminal process is being misused.
For the Respondent/State
The Additional Public Prosecutor acknowledged that the offences are punishable with less than seven years but argued that the petitioner’s alleged refusal to appear or respond to police inquiries justified bypassing the notice. He contended that the petitioner’s non-cooperation amounts to an implied waiver of procedural rights and that the court should not interfere at this stage of investigation.
The Court's Analysis
The Court examined the statutory framework under Section 35(3) BNSS, which provides: "Where a person is accused of an offence punishable with imprisonment for a term which may extend to seven years or less, the Investigating Officer shall issue a notice requiring the accused to appear before him..." The Court noted that this provision is mandatory and not directory.
"The legislature has deliberately introduced this safeguard to prevent arbitrary arrests and to ensure that the accused is given a fair opportunity to explain before any coercive action is taken. This is not a mere procedural formality but a substantive right.
The Court distinguished Arnesh Kumar as not merely a guideline but as a binding constitutional interpretation of the right to personal liberty under Article 21. It held that non-cooperation by the accused does not negate the obligation of the Investigating Officer to issue notice. To hold otherwise would render Section 35(3) BNSS meaningless and open the door to abuse.
The Court further observed that the petitioner had not been arrested and was willing to appear before the Investigating Officer. The State’s argument of non-cooperation was speculative and not substantiated by evidence of prior attempts to serve notice. The Court rejected the notion that silence or absence equates to waiver of statutory rights.
The Verdict
The Criminal Petition was disposed of at the admission stage. The petitioner is directed to appear before the Investigating Officer on or before 22.04.2026. The Investigating Officer is directed to issue a formal notice under Section 35(3) of the BNSS and permit the petitioner to submit a written reply along with relevant documents. The investigation shall proceed strictly in accordance with the procedure contemplated under Section 35(3) BNSS and the guidelines in Arnesh Kumar v. State of Bihar. All pending miscellaneous applications are closed.
What This Means For Similar Cases
Notice Under BNSS Section 35(3) Is Mandatory, Not Optional
- Practitioners must now insist on compliance with Section 35(3) BNSS in all cases involving offences punishable with up to seven years’ imprisonment.
- Any arrest or summons issued without prior notice is procedurally invalid and subject to quashing.
- Courts will not accept "non-cooperation" as justification for skipping statutory notice.
Civil Disputes Cannot Be Converted Into Criminal Cases Without Clear Ingredients
- Merely alleging financial default does not automatically attract Sections 406 or 420 IPC.
- Lawyers should challenge FIRs at the earliest stage where the dispute is essentially contractual or civil in nature.
- The burden is on the prosecution to demonstrate dishonest intent at the time of transaction, not merely failure to pay.
Cooperation Must Be Proactive, Not Passive
- Accused persons must respond to formal notices under BNSS to preserve their rights.
- Failure to appear after a valid notice may lead to arrest, but failure to respond to informal inquiries does not justify bypassing the notice.
- Counsel should advise clients to appear with documents and written explanations to demonstrate good faith.
