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Bombay High Court

AJIT GENBA DAGADEversusSTATE OF MAHARASHTRA

Decided
Disposal
Disposed Off

Holding

The arrest was illegal because the statutory notices under Sections 35(3) and 46(2) of the BNSS were not complied with, and therefore bail must be granted.

Summary

The applicant, Ajit Genba Dagade, filed a bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, claiming that he was arrested without being named in the FIR and without the required notices under Sections 35(3) and 46(2) of the BNSS. The court examined the remand report and the statutory notices, noting that the arrest mirrored the facts of Omkar Balkrushna Gade & ors. v. State of Maharashtra, where the court held such arrests illegal due to non‑compliance with the notice provisions. The prosecution’s report addressed only the merits and did not explain the notice deficiency, reinforcing the claim of an illegal arrest. Consequently, the court found the arrest unlawful and, despite the seriousness of the alleged offences, granted bail on strict conditions. The bail order was issued, directing immediate release upon furnishing a bond and imposing reporting and conduct requirements.

Issues considered

  • Whether the arrest of the applicant was illegal due to non‑compliance with Sections 35(3) and 46(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
  • Whether the applicant is entitled to bail when the arrest is deemed illegal despite the nature of the charges.

Legislation cited

Subjects

  • bail
  • illegal arrest
  • due process
  • BNSS
  • Section 35
  • Section 46
  • criminal procedure
  • Maharashtra

Judgment

                                                                          71. BA-3766-26.odt


Amberkar

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION


                             BAIL APPLICATION NO. 3766 OF 2026

           Ajit Genba Dagade                                        .. Applicant
                      Versus
           State of Maharashtra                                     .. Respondent
                                    ....................
            Mr. Rachit Khamparia a/w N.V. Sharma, Mohammad Sayyed &
             Pandurang Andhale, Advocates for Applicant
            Ms. Rajeshree V. Newton, APP for State
            Mr. Shailesh Kharat a/w Mr. Vinod Kendre, Mr. Govind Mundhe,
             Mr. Parthraj Ware & Mr. Bharat Shinde, Advocates for Intervenor /
             First Informant
            PSI, Manjari Police Station
                                           ...................
                                         CORAM : MILIND N. JADHAV, J.
                                         DATE           : OCTOBER 9, 2026
           P. C.:

           1.       Heard Mr. Khamparia, learned Advocate for Applicant; Ms.

           Newton, learned APP for State and Mr. Kharat, learned Advocate for

           Intervenor / First Informant.


           2.       This is an Application under Section 483 of Bharatiya Nagarik

           Suraksha Sanhita, 2023 seeking regular bail in connection with Crime

           No. 98/2026 registered with Manjari Police Station, Pune on

           06.07.2026 for the offences punishable under Sections 62(2), 108,

           111(2), 318(4), 319(2), 336(3), 338, 340(2), 351(2) read with

           Section 3(5) of the Bharatiya Nyaya Sanhita, 2023.




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3.    On 07.10.2026 after hearing the learned Advocates appearing

for the parties, this Court passed the following order:-

      "1.   Heard Mr. Khamparia,          learned Counsel for the Applicant
      and Ms. Newton, learned APP for the Respondent – State.
      2.      Case of the Applicant stems from the fact that the Applicant is
      not named in the FIR, but has been arrested illegally. Learned Advocate has
      drawn my attention to page No. 65 which is the remand report dated
      05.08.2026. Next he has drawn my attention to page No. 68 which i s
      t h e Section 47(1)(2) notice which i s issued t o h im on 05.08.2026
      and the time is kept blank. Next he has drawn my attention to page No. 70
      which is the Section 35(3) notice issued to him on 05.08.2026. Prima
      facie, case of the Applicant is squarely covered by the decision of this
      Court in the case of Omkar Balkrushna Gade & ors. vs. The State of
      Maharashtra decided by this Court on 10.09.2026 in B. A. No. 2899 of
      2026. Paragraph No. 8 of the said decision, wherein the facts are
      absolutely identical to the facts before me in the present case, reads
      thus:-
             "8.    However, in viewof non compliance of the provisions of
             subsections(3), (4) and(6) of Section 35 of the BNSS, the
             arrestof both the Applicants on the same date and at the same
             time while simultaneously handing ov er 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 suc h orders asmay have
             been passed by a competent Court in this behalf, arrest him for
             the offence mentioned in the notice.”
      3.      In that view of the matter, the prosecution shall immediately take
      instructions and apprise the Court about the veracity of the submissions
      made by the learned Advocate which are quoted herein above and
      inform the Court accordingly on next date.
      4.     List the matter on 09.10.2026, First On Board."

4.    Today, learned APP pursuant to the said order has placed before

the Court a report dated 08.10.2026. The said report is entirely on the

merits of the matter. The order which is reflected above prima facie

calls upon the prosecution to explain its role with regard to issuance of

the notices under Sections 35(3) and 46(2) of BNSS, which are



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appended to the Bail Application. The report which is placed before

me is entirely on the merits without a semblance of a sentence or word

with regard to the action of the prosecution with regard to issuance of

the aforesaid two statutory notices under the provisions of the BNSS.

The case of the Applicant is, therefore, covered by the decision of this

Court as being that of an illegal arrest as determined by this Court in

the case of Omkar Balkrushna Gade & Ors. (supra). In that view of the

matter, I am inclined to consider the present Application of the

Applicant.


5.    At this juncture, Mr. Kharat, learned advocate appearing on

behalf of the Intervenor / first informant enters        appearance and

persuades me to allow him to intervene. Insofar as the present issue is

concerned for grant of bail, I need not even hear the first informant

because of the exigency shown by the prosecution in arresting the

Applicant without following the due process of law. Nevertheless, I

have heard Mr. Kharat.


6.    Mr. Kharat would submit that the Applicant is indicted in a

serious offenses i.e. abetment of suicide and siphoning of family funds

including forgery and cheating. Mr. Kharat may be absolutely right

but that can only be applicable and possible if the prosecution follows

the due process of law. In the present case, once it is prima facie seen

that the arrest of the Applicant is illegal, the Court will have to step in

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because the rule of law pervades and prevails in this Country which

the prosecution should know. In that view of the matter, the Applicant

is entitled to be released on bail forthwith. Hence, the Applicant is

granted bail on the following terms and conditions:-


         (i)   Applicant is directed to be immediately released on bail

               from prison in connection with Crime No. 98 of 2026;

         (ii) Applicant is directed to be released on bail on

               furnishing P.R. Bond of Rs. 25,000/- (Rs. Twenty Five

               Thousand only) with one or two sureties in the like

               amount;

         (iii) Applicant shall report to the Investigating Officer at

               concerned Police Station, once every month on the first

               Sunday of the month between 10:00 a.m. to 12:00

               p.m.;

         (iv) Applicant shall co-operate with the conduct of trial and

               attend the Trial Court on all dates, unless specifically

               exempted    and    will   not   take    any    unnecessary

               adjournments, if he does so it will entitle the

               prosecution to apply for revocation of this order;

         (v) Applicant shall not leave the State of Maharashtra

               without prior permission of the Trial Court;

         (vi) Applicant shall not influence any of the witnesses or


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                                   tamper with the evidence in any manner;

                            (vii) Applicant shall keep the Investigating Officer informed

                                   of his current address and mobile contact number and /

                                   or change of residence or mobile details, if any, from

                                   time to time, as applicable; and

                            (viii)Any infraction of the conditions shall entail cancellation

                                   of bail granted to the Applicant.

           7.         Needless to state that the above observations will not come in

           the way of trial as they are prima facie in nature based on the

           submissions made and the material placed before this Court.


           8.         Bail Application is allowed and disposed of in the above terms.



Amberkar                                                  [ MILIND N. JADHAV, J. ]
                      Digitally
                      signed by
                      RAVINDRA
           RAVINDRA   MOHAN
           MOHAN      AMBERKAR
           AMBERKAR   Date:
                      2026.10.09
                      20:50:23
                      +0530




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