Bombay High Court
OMKAR BALKRUSHNA GADEversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
The court held that the arrest was illegal because the police failed to observe the mandatory provisions of Section 35(3), (4) and (6) of the BNSS, and therefore granted bail to the applicants.
Summary
The Bombay High Court considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by two brothers arrested for alleged offences under Sections 140(3), 311 and 3(5) of the Bharatiya Nyaya Sanhita, 2023. The applicants argued that the police violated statutory procedure by arresting them immediately after serving a notice under Section 35(3) of the BNSS, without complying with the mandatory requirements of Sections 35(4) and 35(6). The respondent’s counsel conceded the procedural lapse. Relying on the Supreme Court’s decision in Satender Kumar Antil v. CBI, the court held that arrest under Section 35(6) is an exception and must follow due process. Consequently, the court granted bail, ordering the release of the applicants on bond with standard conditions, and directed police authorities to adhere to the statutory provisions in future arrests. The order was limited to bail and did not address the merits of the underlying criminal case.
Issues considered
- Whether the arrest of the applicants was illegal due to non‑compliance with the procedural requirements of Section 35 of the BNSS.
- Whether bail should be granted when the arrest is deemed procedurally defective.
- Interpretation of the police power of arrest under Section 35(6) of the BNSS in light of Supreme Court precedent.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 35(3), 35(4), 35(6), 47(1), 47(2), 483
- Bharatiya Nyaya Sanhita, 2023 — s. 140(3), 311, 3(5)
Subjects
- bail
- arrest procedure
- Section 35 BNSS
- due process
- police powers
- young offenders
- Bharatiya Nagarik Suraksha Sanhita
- Bharatiya Nyaya Sanhita
- statutory compliance
Judgment
44.BA.2899.2026.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2899 OF 2026
Omkar Balkrushna Gade and Ors. .. Applicants
Versus
The State of Maharashtra .. Respondent
....................
Mr. Nikitesh Kotangale a/w. Ms. Krishma Joshi, Mr. Amit Jaiswar,
Mr. Suhas Sarvade and Mr. Nishant Singh, Advocates for
Applicants.
Mr. Amit A. Palkar, APP for Respondent.
PSI – Ravindra B. Khamgal, Talegaon Dabhade Police Station.
...................
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 10, 2026
P.C.:
1. Heard Mr. Kotangale, learned Advocate for Applicants and
Mr. Palkar, learned APP for Respondent.
2. This is an Application under Section 483 of Bharatiya
Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) seeking Bail in
connection with C.R. No.109 of 2026 dated 09.04.2026 registered with
Talegaon Dabhade Police Station for offences punishable under
Sections 140(3), 311 and 3(5) of the Bharatiya Nyaya Sanhita, 2023.
3. Date of offense alleged is 08.04.2026. Mr. Kotangale has
forthwith drawn my attention to the notice issued to both the
Applicants under Section 35(3) of the BNSS. It is dated 10.04.2026
which was received by them on the same date. He would submit that
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when they were handed over this notice in the Police Station and when
they had visited the Police Station to inquire about the arrest of their
father who is also arraigned as an Accused in the present crime,
without adhering to the statutory provisions under Section 35(4) read
with Section 35(6) of the BNSS, the Applicants were forthwith
arrested.
4. Mr. Palkar takes instructions from the concerned
Investigating Officer who had issued the notice under Section 35(3) of
the BNSS on 10.04.2026 who is standing behind him in the Court and
in his usual fair-mindedness informs the Court that what Mr. Kotangale
is submitting is correct.
5. There is no reason to disbelieve Mr. Kotangale for the simple
reason that the notice under Section 47(1) read with (2) under the
BNSS is also simultaneously issued alongwith the notice under Section
35(3) notice on the same date and time, copy of which is placed before
me. Once this is the position then a clear aberration has been
committed by the prosecution and the Investigating Officer.
6. Prima facie, Section 35(3) of the BNSS reads thus:-
“35.(1) …
(2) …
(3) The police officer shall, in all cases where the arrest of a person
is not required under sub-section (1) issue a notice directing the
person against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion
exists that he has committed a cognizable offence, to appear before
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him or at such other place as may be specified in the notice.”
7. The said notice itself states in clause No.8 that the Applicants
will have to cooperate and comply with the provisions of Sections
35(4) and 35(6) of BNSS thereunder. The details of the concerned
transaction for which investigation was underway is stated in clause
Nos.1 to 7 of the said notice.
8. However, in view of non compliance of the provisions of
subsections (3), (4) and (6) of Section 35 of the BNSS, the arrest of
both the Applicants on the same date and at the same time while
simultaneously handing over notices under the above Section 35 BNSS
to them is therefore, illegal. Sub-section (6) categorically states that
where such person at any time fails to comply with the terms of the
notice, (issued under Section 35(3) of the BNSS) or is unwilling to
identify himself, the Police Officer may, subject to such orders as may
have been passed by a competent Court in this behalf, arrest him for
the offense mentioned in the notice.
9. This valuable statutory, mandatory procedure entails a very
valuable right to a person who is sought to be arrested but in the
present case non-compliance of this procedure and mandatory
provision is prima facie fatal to the prosecution case wherein
admittedly, the prosecution has arrested both the Applicants at the
time of service of the notice under Section 35(3) of the BNSS itself.
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10. Applicant No.2 is a student and a young offender of 20 years.
He is studying and is about to take admission for diploma, according to
Mr. Kotangale. His elder brother is the other accused person who is 24
years old. The Police on their part are required to be extremely
sensitive in such matters. When they launch prosecution and arrest
such young offenders, their life rather the future prospects of such
young offenders, is at stake can get destroyed forever. I am not
touching the merits of the matter, though they have been argued by
Mr. Kotangale, primarily because it may have a different connotation
but would like to determine the present Bail Application only on the
basis of the aforesaid reason for the prosecution not having followed
the due process of law after issuing notice under Section 35(3) of
BNSS and directly arresting the Applicants.
11. Equally, Applicant No.1 is also a young person of 24 years of
age. Both of them having been lodged in prison especially in the
aforesaid facts and circumstances speaks volume about how the
prosecution behaves in such matters. I would not say much but the
Applicants have made out a clear case for grant of bail on account of
the aforesaid mandatory violation and dereliction by the prosecution.
12. Present Bail Application is filed by Applicant Nos.1 and 2
who are both brothers, age 24 years and 20 years. In view of the
aforesaid legal provisions not having been complied with, the bail
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application stands allowed in terms of prayer clause (b). The
Applicants are granted bail on the following terms and conditions:-
(i) Both Applicants are directed to be immediately released
from prison in connection with Crime No.109 of 2026;
(ii) Both Applicants are directed to be released on bail on
furnishing P.R. Bond of Rs. 5,000/- each (Rs. Five
Thousand only) with one or two surety / sureties of the
like amount;
(iii) Both Applicants shall co-operate with the conduct of
trial and attend the Trial Court if so required and called
upon. However their Advocates shall remain present on
all the dates of hearing;
(iv) Both Applicants shall not leave the country without
prior permission of the Trial Court;
(v) Both Applicants shall not influence any of the witnesses
or tamper with the evidence in any manner;
(vi) Both Applicants shall keep the Investigating Officer
informed of their current address and mobile contact
number and / or change of residence or mobile details,
if any, from time to time, as applicable; and
(vii) Any infraction of the conditions shall entail cancellation
of bail granted to the Applicants.
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13. It is clarified that the observations made in this order are
limited for the purpose of granting Bail only and I have not made any
observations on merits of the case. The trial shall be adjudicated on
the strength of the evidence led and strictly on its own merits being
uninfluenced with any of the prima facie observations made
hereinabove in this order.
14. At this juncture, Mr. Kotangale persuades the Court to
consider a larger point in question. He would submit that the
prosecution in such matters when they issue notice under Section
35(3) of BNSS invariably is in a great rush and hurry to arrest the
noticees and as has been done in the present case, the prosecution goes
to arrest the noticees on the same day and date itself while serving the
Section 35(3) notice by circumventing the due process of law.
15. He would submit and persuade the Court to pass appropriate
directions in this regard so that it helps not only the prosecution in
making a proper investigation but also ensures that the fabric of the
Society does not get disturbed due to violation of a very valuable
fundamental right which is given to the noticee to present himself and
his case before the Investigating Officer when a notice under Section
35(3) of the BNSS is issued to him.
16. I fully concur with the submissions made by Mr. Kotangale.
In the larger public interest such directions are absolutely necessary in
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today's times, especially when arrests are made by the Police Officers
in a knee-jerk reaction manner which is prima facie seen in the present
case presented before me.
17. That apart, the Investigating Officer should be extra cautious
especially when a notice under Section 35(3) of the BNSS is issued in
ascertaining and complying with the provisions of Section 35(4) read
with Section 35(6) of the BNSS. If the he arrests the noticee
simultaneously as has been done in the present case, the provisions of
of Section 35(6) are rendered completely otiose and redundant
infructuous. That is not the intention of the law as well as the
legislature. Once the Investigating Officer has made up his mind and
has issued a notice under Section 35(3) of the BNSS, it is mandatory
and incumbent upon him to comply with the statutory provisions and
ensure that before he arrests the noticee, he complies with the said
provisions and satisfies himself. That is the intention of sub-section (6)
of Section 35 of the BNSS as stated in the said provision.
18. That apart, sub-section (6) also states that on failure to
comply, the police officers can obtain appropriate orders from the
Competent Court. Nothing of this sort is done or applied in the present
case. Here, both the Applicants were served with a notice under
Section 35(3) of the BNSS but alongwith the said notice
simultaneously, Section 47(1)(2) notice of informing them about their
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grounds of arrest was also served on them and they were immediately
taken into custody. This can be easily deciphered from the twin notices
placed before me. Mr. Kotangale has also touched upon the lis between
the parties namely the Complainant, which, prima facie, according to
him is of a civil nature altogether.
19. Attention is drawn to a decision of the Supreme Court in the
case of Satender Kumar Antil Vs. Central Bureau of Investigation and
Another 1 wherein it was held that power of arrest under Section 35(6)
read with Section 35(1)(b) of the BNSS, 2023, pursuant to a notice
issued under Section 35(3) of the BNSS, 2023 is not a matter of
routine, but an exception, and the Police Officer is expected to be
circumspect and slow in exercising the said power. The relevant
paragraph numbers are reproduced below for ease of reference:-
“32. The power of arrest under Section 35(6) read with Section
35(1)(b) of the BNSS, 2023 must be interpreted as a strict
objective necessity, and not a subjective convenience for the
police officer. It does not mean the police officer can arrest to
simply ask questions. However, it means that the police officer
must satisfy himself that the investigation, qua an offence
punishable with imprisonment up to 7 years, cannot proceed
effectively without taking the individual concerned into custody.
Any interpretation to the contrary would clearly frustrate the
purpose and legislative intent of Sections 35(1)(b) and Sections
35(3) to 35(6) of the BNSS, 2023.
33.On the basis of the interpretation given by us, we conclude
as follows:
33.1.An arrest by a police officer is a mere statutory discretion
which facilitates him to conduct proper investigation, in the
form of collection of evidence and, therefore, shall not be
termed as mandatory.
33.2.Consequently, the police officer shall ask himself the
1 (2026) 7 SCC 311
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question as to whether an arrest is a necessity or not, before
undertaking the said exercise.
33.3.For effecting an arrest, qua an offence punishable with
imprisonment up to 7 years, the mandate of Section 35(1)(b)(i)
of the BNSS, 2023 along with any one of the conditions
mentioned in Section 35(1)(b)(ii) of the BNSS, 2023 must be in
existence.
33.4.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.
33.5.Even if the circumstances warranting an arrest of a person
are available in terms of the conditions mentioned under
Section 35(1)(b) of the BNSS, 2023, the arrest shall not be
undertaken, unless it is absolutely warranted.
33.6.Power of arrest under Section 35(6) read with Section
35(1)(b) of the BNSS, 2023, pursuant to a notice issued under
Section 35(3) of the BNSS, 2023 is not a matter of routine, but
an exception, and the police officer is expected to be
circumspect and slow in exercising the said power.’”
20. Be that as it may, this Court refrains from going into or
opining about the said lis on merits. The Bail Application is determined
on the above ground. The Registrar General of this Court is directed to
send a copy of this order to Superintendents of Police in all districts
across Maharashtra and all Commissioners of Police in Maharashtra to
enable them to circulate it to all the Police Officers and Police Stations under their control,
to adhere to the statutory provisions of the BNSS qua Section 35(3)
and the procedure required to be followed thereunder before effecting
arrest under Section 47(1)(2) of the BNSS.
21. I appreciate the assistance rendered by learned advocates
Mr. Kotangale and Mr. Palkar (APP) for aiding and assisting the Court
in passing the above directions and order.
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22. Bail Application is allowed and disposed of in the above
terms.
H. H. SAWANT [ MILIND N. JADHAV, J. ]
Digitally signed
HARSHADA by HARSHADA
HANUMANT
HANUMANT SAWANT
SAWANT Date: 2026.09.11
11:17:47 +0530
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