HC directs Maharashtra police to follow BNSS arrest safeguards

Bombay HC has directed all Maharashtra SPs and CPs to ensure strict compliance with BNSS procedures before arrests

PUNE: The Bombay High Court has directed its registrar general to circulate an order to all superintendents of police and commissioners of police in Maharashtra, asking them to ensure strict compliance with the statutory procedure under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) before making arrests.

Bombay HC has directed all Maharashtra SPs and CPs to ensure strict compliance with BNSS procedures before arrests. (Getty Images/iStockphoto (PIC FOR REPRESENTATION))

The direction came after the court held that the arrest of two brothers while being served notices under Section 35(3) was illegal.

Justice Milind N Jadhav issued the direction while granting bail to Omkar Balkrushna Gade, 24, and his 20-year-old brother in connection with a case registered at Talegaon Dabhade Police Station. The order was passed on September 10.

According to the order, the investigating officer issued Section 35(3) notices to the brothers on April 10 but arrested them while the notices were being served. The prosecution, through the investigating officer present in court, accepted that the applicants’ contention regarding the manner of their arrest was correct.

The court held that simultaneously serving the notices and arresting the applicants amounted to non-compliance with the statutory procedure under Section 35.

“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,” Justice Jadhav observed.

Section 35(3) provides for issuing a notice to a person against whom there is a reasonable complaint, credible information or reasonable suspicion of having committed a cognisable offence, when arrest is not required. The notice requires the person to appear before the police officer or at a specified place.

Referring to the Supreme Court’s judgment in Satender Kumar Antil vs Central Bureau of Investigation, the court said the power to arrest after issuance of a Section 35(3) notice is an exception, requiring restraint and caution.

The court said investigating officers must be “extra cautious” while issuing and acting upon Section 35(3) notices and directed the registrar general to circulate the order among police officers and police stations across Maharashtra.

The brothers, booked under Sections 140(3), 311 and 3(5) of BNS, were granted bail on personal recognisance bonds of ₹5,000 each. The court clarified that its observations were confined to the bail proceedings and did not amount to findings on the merits of the criminal case.