The Rajasthan High Court has reinforced the constitutional safeguard of personal liberty by mandating a 20-day pre-arrest notice for individuals accused of non-bailable offences under the Bharatiya Nagarik Suraksha Sanhita, 2023, where the maximum punishment does not exceed seven years. This direction, grounded in the Supreme Court’s precedent in Arnesh Kumar v. State of Bihar, ensures that arrest is not the default response and that procedural fairness precedes deprivation of liberty.
The Verdict
The petitioner succeeded in obtaining a procedural safeguard. The High Court directed that, in cases involving offences under Sections 318(4) and 316(2) of the Bharatiya Nagarik Suraksha Sanhita (BNS) carrying a maximum sentence of seven years or less, investigating agencies must issue a 20-day notice before effecting arrest. The petition for quashing the FIR was disposed of, but the court imposed this condition to prevent arbitrary detention. The petitioner remains free to challenge the case before the trial court or higher forums.
Background & Facts
The petitioner, Nilesh Agarwal, was named in FIR No. 320/2025 registered at Police Station Kotget, Bikaner, under Sections 318(4) and 316(2) of the BNS. These provisions relate to causing hurt by act endangering life or personal safety, and voluntarily causing hurt by dangerous weapons or means. The petitioner filed a criminal miscellaneous petition under Section 528 of the BNS, which corresponds to Section 482 of the old CrPC, seeking quashing of the FIR and protection from arrest. He contended that the allegations did not prima facie constitute a serious offence warranting immediate arrest. The State, represented by the Public Prosecutor, opposed the petition, arguing that the nature of the offences justified investigation and potential arrest. The matter was heard on the basis of the FIR and the legal provisions governing arrest under the new BNS framework.
The Legal Issue
The central legal question was whether, in cases where the alleged offence under the BNS carries a maximum punishment of seven years or less, the investigating agency is required to issue a prior notice before arrest, in accordance with the principles laid down in Arnesh Kumar v. State of Bihar, even though the BNS does not explicitly replicate Section 41-A CrPC.
Arguments Presented
For the Petitioner
Learned counsel for the petitioner relied on the Supreme Court’s judgment in Arnesh Kumar v. State of Bihar, which held that arrest is not a mechanical consequence of a cognizable offence and must be justified by necessity. He argued that Sections 318(4) and 316(2) of the BNS, while non-bailable, do not involve grave violence or threat to public order, and that the maximum punishment of seven years places them within the ambit of Arnesh Kumar’s protective framework. He further cited Section 41 of the BNS, which mandates that arrest should be avoided if the purpose of investigation can be achieved without it.
For the Respondent
The Public Prosecutor contended that the BNS does not contain an explicit provision equivalent to Section 41-A CrPC, and therefore, the Arnesh Kumar directive cannot be mechanically applied. He argued that the legislature’s omission of a mandatory notice provision under the BNS indicates an intent to grant investigating agencies greater discretion. He further submitted that the nature of the alleged offences - causing hurt by dangerous means - could involve risk of evidence tampering or witness intimidation, justifying immediate arrest.
The Court's Analysis
The Court rejected the State’s argument that the absence of an explicit notice provision in the BNS negates the applicability of Arnesh Kumar. It held that the constitutional mandate under Article 21, which protects personal liberty, is not contingent on statutory codification. The Court observed that the Arnesh Kumar principle is not merely a procedural guideline but a constitutional safeguard against arbitrary arrest, and its application is not limited to offences under the old CrPC.
"The dictum of the Hon'ble Supreme Court in Arnesh Kumar vs. State of Bihar squarely applies mutatis mutandis to the present case."
The Court emphasized that Section 41 of the BNS itself requires that arrest be a last resort, and that the conditions for arrest must be objectively satisfied. It noted that offences punishable with up to seven years imprisonment are not inherently grave enough to justify immediate detention without exploring less restrictive alternatives. The Court further held that the 20-day notice period is not a delay tactic but a reasonable opportunity for the accused to cooperate with investigation, secure legal representation, and avoid the stigma and disruption of custodial detention.
The Court also clarified that this direction does not preclude the investigating agency from seeking arrest if, after the notice period, there is credible evidence of flight risk, evidence destruction, or threat to witnesses. The petitioner retains the right to challenge the proceedings before the trial court or the High Court.
What This Means For Similar Cases
This judgment significantly impacts how investigating agencies handle non-bailable offences under the BNS that carry a maximum sentence of seven years or less. Practitioners must now assume that a 20-day pre-arrest notice is the norm unless exceptional circumstances justify immediate detention. This creates a rebuttable presumption against arrest, shifting the burden to the State to demonstrate necessity after notice has been served.
The ruling extends the Arnesh Kumar principle beyond the CrPC to the BNS, affirming that constitutional safeguards are not overridden by statutory silence. It also provides a clear benchmark for bail applications and anticipatory bail petitions: if the offence is not of a grave nature and the accused is not a flight risk, the failure to issue notice may be grounds for quashing arrest or granting anticipatory bail.
However, the judgment does not apply to offences punishable with more than seven years, or those involving terrorism, sexual violence, or organized crime, where the presumption of necessity for arrest remains intact. Practitioners should carefully assess the maximum punishment under the relevant BNS section before advising clients on arrest risk.
