The Telangana High Court has clarified a critical procedural boundary under the Bharatiya Nagarik Suraksha Sanhita, 2023, holding that notices under Section 179 cannot be issued to persons accused of an offence. This ruling reinforces the statutory distinction between witnesses and accused in criminal investigations, aligning with constitutional safeguards against arbitrary state action.
Background & Facts
The Dispute
The petitioners, comprising individuals and corporate entities involved in business operations, were named as accused in FIR No. 07/2026 registered by the Economic Offences Wing (EOW) of Cyberabad Police. The complaint alleged offences under Sections 318(4), 316(2) read with Section 61(2) of the Bharatiya Nyaya Sanhita (BNS), punishable with imprisonment of less than seven years. The petitioners contended they were falsely implicated and had no role in the alleged criminal conduct.
Procedural History
- 07.02.2026: Investigating Officer issued a notice under Section 179 of BNSS directing petitioners to appear before the police station with documents for investigation.
- Petition Filed: The petitioners moved the High Court under Section 528 of BNSS seeking quashing of the notice and stay of further proceedings.
- No chargesheet filed: At the time of hearing, no chargesheet had been submitted, and no formal arrest or custody had occurred.
Relief Sought
The petitioners sought quashing of the impugned notice under Section 179 BNSS, arguing it was legally impermissible to issue such notices to accused persons. They also sought protection from coercive investigation procedures pending compliance with mandatory statutory safeguards.
The Legal Issue
The central question was whether Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023 permits the Investigating Officer to issue a notice to a person who is already named as an accused in an FIR, or whether such power is restricted exclusively to witnesses or persons with knowledge of the case.
Arguments Presented
For the Petitioner
Learned Senior Counsel argued that Section 179 BNSS is expressly designed to summon persons who can furnish information as witnesses, not to compel accused persons to appear. Citing Arnesh Kumar v. State of Bihar and Md. Asfol Alam v. State of Jharkhand, counsel emphasized that the Investigating Officer must follow Section 35(3) BNSS, which prescribes the procedure for summoning accused persons through written notice with clear particulars of the offence. The issuance of a Section 179 notice to accused persons, counsel submitted, was a procedural irregularity that violated the spirit of Article 21 and the Apex Court’s directives on avoiding arbitrary arrests.
For the Respondent
The Additional Public Prosecutor conceded that the notice under Section 179 was issued inadvertently. He submitted that the Investigating Officer had intended to issue a notice under Section 35(3) BNSS, which governs the summoning of accused, but mistakenly used Section 179. The State requested the Court to permit correction of the error by re-issuing the notice under the correct provision, and assured cooperation with the investigation.
The Court's Analysis
The Court examined the language and structure of Section 179 BNSS, which states: "Any officer in charge of a police station may require any person to attend before him for the purpose of investigation, if such person appears to him to be acquainted with the facts and circumstances of the case." The Court noted that the phrase "acquainted with the facts and circumstances" inherently refers to persons who are not the subject of the accusation but possess relevant information.
"The provision is not intended to be a tool for summoning the accused, who are already identified and subject to investigation under Section 35(3). To interpret Section 179 as applicable to accused would render Section 35(3) otiose and undermine the procedural safeguards intended by the legislature."
The Court further relied on the Arnesh Kumar principle that police must not resort to coercive measures without applying the triple test - gravity of offence, likelihood of flight, and possibility of tampering with evidence. Since the offences alleged were non-bailable but not heinous, and no arrest had occurred, the Court found the use of Section 179 to be an abuse of process.
The Court also referenced its own circular in ROC No. 1399/SoL/2023, which mandates strict adherence to statutory procedures in investigations. The Court held that the Investigating Officer’s action was legally unsustainable, regardless of intent, because procedural compliance is non-negotiable under the rule of law.
The Verdict
The petitioners succeeded. The Court quashed the notice dated 07.02.2026 issued under Section 179 BNSS to the accused persons. However, the Court granted liberty to the Investigating Officer to issue a fresh notice under Section 35(3) BNSS, provided it complies with all procedural requirements.
What This Means For Similar Cases
Section 179 BNSS Is Not a Substitute for Section 35(3)
- Practitioners must challenge any notice issued under Section 179 BNSS to an accused person as legally void.
- The distinction between "witness" and "accused" is jurisdictional, not semantic - misclassification invalidates the notice.
- A notice under Section 179 cannot be cured by subsequent correction; it must be quashed and re-issued under the correct provision.
Procedural Compliance Is Mandatory, Not Discretionary
- Even inadvertent errors in invoking the wrong provision constitute procedural illegality.
- Courts will not validate unlawful notices merely because the investigation is otherwise lawful.
- Investigating officers must be trained to distinguish between Sections 35(3) (for accused) and Section 179 (for witnesses) to avoid judicial intervention.
Accused Are Entitled to Notice Under Section 35(3) Before Coercion
- Section 35(3) requires the notice to specify the offence, time, place, and consequences of non-appearance.
- Failure to comply with Section 35(3) renders any subsequent arrest or interrogation vulnerable to challenge under Article 21.
- This judgment reinforces that the burden of lawful procedure lies with the State, not the accused.
