Why Section 35 BNSS matters in Section 7 PC Act cases
Section 7 of the Prevention of Corruption Act, after the 2018 amendment, punishes a public servant who obtains, accepts, or attempts to obtain an undue advantage. The offence is serious, but it still falls within the seven-year bracket. That makes Section 35 BNSS directly relevant.
This changes the ordinary approach to arrest. The investigating agency cannot proceed on the old assumption that because the offence is serious, arrest automatically follows. The court must ask:
-
Was notice under Section 35(3) issued?
-
If not, why not?
-
What reasons were recorded to show that arrest was necessary?
-
What statutory condition under Section 35(1)(b) made immediate arrest unavoidable?
-
If the accused was cooperating, what fresh circumstance justified arrest despite notice?
These are not merely procedural questions. They go to the legality of the arrest itself.
If the record does not show meaningful compliance with Section 35, the remand court should be slow to authorise further detention. A weak arrest cannot be cured by a remand order.
The effect of a failed trap
A failed trap does not necessarily mean that no offence is made out. That much must be clearly understood. The prosecution may still rely on verified demand, recorded conversation, pre-trap material, and surrounding circumstances. The Bombay High Court has indicated in the case of Rajendra Shinde Vs. The State of Maharashtra that mere demand may still sustain prosecution in an appropriate case and that actual physical acceptance is not the only possible mode in which the offence may arise.
But that is only one part of the picture.
The stronger point for remand law is this: a case may survive, and yet police custody may still be unnecessary.
Where the accused has refused to accept the tainted money:
-
there is no recovery from his person,
-
there is no successful phenolphthalein test,
-
there is no immediate custodial recovery of currency,
-
and much of the material is already with the ACB, such as complaint, verification material, panchanama, recordings, and official files.
In such circumstances, the request for police custody becomes substantially weaker. Investigation may continue. Custody does not automatically follow.
The Special Judge’s first duty
The Special Judge should not move directly to the question, “Does the prosecution need time?” The first judicial inquiry must be, “Was the arrest itself lawful?”
That duty flows from the constitutional preference for liberty and the settled principle that remand is not mechanical. Police custody is not to be granted because the police ask for it, nor because the court feels the allegations are serious. It is to be granted only where the arrest is lawful and custodial interrogation is shown to be genuinely necessary.
Therefore, before authorising police custody, the court should test:
-
Whether Section 35 BNSS was complied with.
-
Whether the reasons for arrest are real, specific, and case-based.
-
Whether the investigation truly requires custodial interrogation.
-
Whether the same purpose can be achieved through notice, questioning without custody, seizure of documents, digital analysis, or examination of witnesses.
If those questions are not satisfactorily answered, police custody should be refused.
Can ACB seek PCR by saying it wants to investigate disproportionate assets?
Sometimes, after a failed trap, the ACB adds another submission: that the accused’s custodial interrogation is required because the agency now wants to investigate a disproportionate-assets angle.
That submission, by itself, is not enough.
A mere statement that a DA inquiry is proposed or that the agency suspects disproportionate assets cannot justify police custody. The Special Judge must still insist on legal discipline. The court must ask:
-
What exactly is the DA angle?
-
What material presently indicates such disproportion?
-
What concrete custodial purpose exists?
-
Why cannot the agency collect bank records, service records, property documents, income details, and transaction trails independently?
Police custody may be justified in a DA inquiry if the prosecution shows specific necessity, such as tracing concealed assets, identifying benami holders, recovering lockers, keys, devices, passwords, account details, or preventing destruction of evidence. But a broad statement that “we want to investigate disproportionate assets” is too vague to justify PCR.
So the correct principle is this: a DA inquiry may support police custody only when it is tied to specific custodial needs, not when it is invoked in general language.
What if ACB says investigation is at a preliminary stage?
Another common submission is that the investigation is still in the preliminary stage, and therefore concrete details cannot yet be disclosed.
That argument also cannot, by itself, justify police custody.
The early stage of investigation may explain why the agency cannot disclose every lead in detail. But it does not excuse the agency from showing real necessity. The law does not permit police custody merely because the investigation is developing. If that were accepted, police custody would become routine in every fresh case.
Even at the preliminary stage, the investigating agency must place before the court at least the nature of the custodial purpose. It must indicate, in substance, what it seeks to discover, recover, verify, confront, or prevent. The Judge may accept a degree of confidentiality, but cannot dispense with specificity altogether.
Therefore, “investigation is at a preliminary stage” is not a valid standalone ground for PCR.
Is PCR justified to get information about co-accused?
The remand application may further state that police custody is required to obtain information about co-accused. Again, this is not an automatically sufficient ground.
It is true that identifying co-accused, middlemen, or accomplices may, in some cases, require custodial interrogation. But the remand court must distinguish between a real investigative need and a vague formula.
A bald statement that PCR is needed “to obtain information regarding co-accused” is too general. The application should disclose more:
-
whether the accused is already linked to specific intermediaries,
-
whether certain calls, meetings, messages, or transactions indicate the role of others,
-
whether confrontation is urgently required,
-
whether there is risk that those persons may abscond or destroy evidence,
-
and why the same information cannot be pursued through independent investigation.
Only where the ground is made concrete does it become legally persuasive. Otherwise, it remains a vague investigative hope, not a valid remand reason.
What if accused mentioned one person’s name during verification?
Suppose the prosecution states that, during verification of demand, the accused mentioned the name of one person, and therefore PCR is required to investigate that person’s role.
That fact alone is ordinarily insufficient.
The mere mention of another person’s name creates a lead. It may justify further inquiry. But it does not automatically justify police custody of the accused. A Special Judge would be justified in asking:
-
Who is that person?
-
What role is suspected?
-
How does the mention connect him to the offence?
-
What immediate custodial step requires the accused’s detention?
-
Why can that person not be investigated through notice, surveillance, call records, documents, or separate examination?
If the prosecution cannot answer these questions with some precision, then the ground remains speculative. At best, it supports continuation of investigation. It does not, without more, justify PCR.
Practical judicial approach in such cases
When faced with a Section 7 PC Act case where demand is verified but the trap fails because the accused refuses to accept money, the Special Judge may adopt the following sequence:
-
Determine whether the offence falls in the up-to-seven-years category.
In Section 7 PC Act, it does.
-
Examine compliance with Section 35 BNSS.
Was notice issued? Were reasons for arrest recorded? Was arrest really necessary?
-
Test the specific grounds for police custody.
Are they concrete, or merely general phrases such as:
-
investigation is at a preliminary stage,
-
DA inquiry is to be made,
-
co-accused are to be traced,
-
one person’s name has surfaced?
-
-
Separate suspicion from necessity.
These facts may justify further investigation, but not always custodial interrogation.
-
Ask whether the same purpose can be achieved without police custody.
If documents, bank records, digital records, witnesses, official files, or independent inquiries can serve the purpose, PCR should not be granted.
-
Pass a proportionate order.
If no real custodial necessity is shown, reject PCR and consider bail with appropriate conditions.
What order is ordinarily proper?
In this category of case, the proper order would ordinarily be:
-
to refuse police custody remand, and
-
to consider release on bail with suitable safeguards,
unless the investigating agency shows specific, immediate, and credible grounds demonstrating why custodial interrogation is indispensable.
Such grounds may include the need to recover hidden material objects, trace keys or devices, identify specific benami assets, confront the accused with already identified co-participants, or prevent concrete risk of destruction of evidence. But these reasons must be real and recorded. They cannot be assumed.
A short judge-oriented formulation
A Special Judge may reason in substance as follows:
The offence under Section 7 of the Prevention of Corruption Act is punishable up to seven years and therefore attracts the discipline of Section 35 BNSS. In such offences, notice is the rule and arrest is the exception. In the present case, though demand is said to have been verified, the trap was unsuccessful because the accused refused to accept the tainted amount. No recovery is shown from the accused. The grounds urged for police custody, namely preliminary stage of investigation, proposed inquiry into disproportionate assets, and need to gather information regarding co-accused, are stated in broad terms without disclosing concrete custodial necessity. Mere mention of another person’s name during verification may furnish a lead for investigation, but by itself does not justify police custody. Since no specific material is shown indicating that custodial interrogation is indispensable, the prayer for police custody remand stands rejected.
Conclusion
Corruption cases naturally generate strong suspicion. A verified demand heightens that suspicion. A failed trap creates frustration in the investigation. But remand jurisprudence does not permit detention merely because the agency wants more time or broader freedom to inquire.
The court must insist on something more: legality of arrest, specificity of purpose, and necessity of custody.
That is the correct balance. A failed trap may not end the case. But it often does weaken the case for police custody. After BNSS, especially in offences punishable up to seven years, the Special Judge must ensure that liberty is not displaced by routine remand, and that PCR is granted only when investigation genuinely cannot proceed without it.