The High Court of Telangana has reaffirmed that police cannot initiate arrest in non-bailable offences without first issuing a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, unless exceptional circumstances exist. This ruling reinforces the constitutional safeguard against arbitrary detention and aligns with the Supreme Court’s directive in Arnesh Kumar v. State of Bihar.
Background & Facts
The Dispute
The petitioners, a businessman and his advocate wife, were named in FIR No. 128/2026 registered at Mailardevpally Police Station for alleged violations of the Telangana Gaming Act, 1974, read with Sections 351(2) and 112 of the Bharatiya Nyaya Sanhita (BNS). The police claimed to have found individuals playing cards at their residence and seized cash, smartphones, and playing cards. The petitioners denied any involvement, asserting they were falsely implicated in retaliation for filing a prior writ petition challenging police harassment.
Procedural History
- 07.01.2026: The High Court disposed of W.P. No. 40703/2025, directing the Commissioner of Police to follow due process before initiating action against the petitioners.
- 07.02.2026: Within a month, FIR No. 128/2026 was registered, and police conducted a warrantless raid, forcibly seizing the petitioners’ CCTV DVR.
- 19.02.2026: Petitioners filed W.P. No. 5190/2026 seeking quashing of the FIR and a writ of certiorari, along with two interim applications under Section 151 CPC for preservation of evidence and stay of proceedings.
Relief Sought
The petitioners sought: (1) quashing of the FIR as an abuse of process; (2) return of the seized CCTV DVR; and (3) stay of all further proceedings until due process is followed.
The Legal Issue
The central question was whether Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 mandates the issuance of a prior notice to an accused before arrest in offences punishable with imprisonment of less than seven years, and whether failure to do so violates the principles laid down in Arnesh Kumar v. State of Bihar.
Arguments Presented
For the Petitioner
Counsel for the petitioners argued that the FIR was registered in retaliation for their prior legal challenge, constituting an abuse of process. They emphasized that the offences alleged are non-bailable but punishable with less than seven years’ imprisonment, triggering the mandatory notice requirement under Section 35(3) BNSS. Reliance was placed on Arnesh Kumar v. State of Bihar to contend that arrest without notice is arbitrary and violates Article 21.
For the Respondent
The Additional Public Prosecutor conceded that the accused were found playing cards, which is prohibited under the Telangana Gaming Act. However, he argued that the investigation was ongoing, the seizure was lawful, and notices under Section 35(3) BNSS had already been issued. He maintained that the police action was procedural and not retaliatory.
The Court's Analysis
The Court examined the legislative intent behind Section 35(3) BNSS, which replaces the earlier Section 41A CrPC. The provision mandates that before arresting a person accused of a non-bailable offence punishable with imprisonment up to seven years, the investigating officer must issue a notice requiring the accused to appear before the officer. The Court held that this is not a mere procedural formality but a substantive safeguard against arbitrary arrest.
"The investigating officer ought to follow the procedure prescribed under Section 35(3) of the BNSS and the guidelines formulated by the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar."
The Court noted that the petitioners had recently challenged police conduct in a prior writ petition, and the FIR was registered within a month of its disposal. This temporal proximity, coupled with the warrantless raid and seizure of personal property, raised a prima facie case of retaliatory action. The Court further observed that the police had not demonstrated any exigency justifying immediate arrest, nor had they shown that the accused were likely to abscond or tamper with evidence.
The Court rejected the notion that the mere existence of a crime justifies immediate arrest. It emphasized that Section 35(3) BNSS codifies the Arnesh Kumar principles into statutory law, making compliance mandatory. Failure to issue notice, absent exceptional circumstances, renders the arrest procedurally invalid and violates the presumption of innocence.
The Verdict
The petitioners prevailed. The Court held that Section 35(3) BNSS requires prior notice before arrest in offences punishable with less than seven years’ imprisonment, and that the failure to issue such notice constitutes a violation of due process. The Court directed the investigating officer to strictly comply with the statutory procedure and the Arnesh Kumar guidelines. The matter was listed for further hearing on 23.03.2026.
What This Means For Similar Cases
Notice Is Mandatory, Not Discretionary
- Practitioners must now insist on proof of compliance with Section 35(3) BNSS in all bail applications involving non-bailable offences under seven years.
- Arrests without prior notice are prima facie illegal and can be challenged under Article 226.
- Police affidavits must explicitly state whether notice was issued, and if not, the reasons for non-compliance.
Retaliatory FIRs Are Susceptible to Quashing
- FIRs registered shortly after a petitioner challenges police action in court invite scrutiny for abuse of process.
- Courts will examine temporal proximity and motive when assessing the legitimacy of criminal proceedings.
- Petitioners may seek quashing under Section 482 CrPC or Article 226 where the FIR appears retaliatory.
Seizure of Electronic Devices Requires Legal Basis
- Warrantless seizure of CCTV DVRs or smartphones without a search warrant or statutory authority is vulnerable to challenge.
- Courts may order return of seized devices if no nexus is established between the device and the alleged offence.
- Certified copies may be retained, but original equipment must be returned pending trial.
