Karnataka High Court
Mr. Yugadev R vs The State Of Karnataka on 25 March, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 04.02.2026
Pronounced on : 25.03.2026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2026
BEFORE
R
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.981 OF 2026
BETWEEN:
MR. YUGADEV R.,
S/O M.RAJU,
AGED ABOUT 34 YEARS,
RESIDING AT NO. 42A,
IRUSAPPAN STREET,
CUDDALORE OT, CUDDALORE,
TAMIL NADU - 607 003
(JUDICIAL CUSTODY)
... PETITIONER
(BY SRI SYED KHALEEL PASHA, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
REPRESENTED BY ADUGODI P.S.,
BENGALURU CITY,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT
BENGALURU - 560 001.
2 . ANKIT BHAUWALA
W/O SHIVAKUMAR BHAUWALA,
2
AGED ABOUT 35 YEARS,
RESIDING AT:NO.59,
10TH MAIN, 15TH CROSS,
WILSON GARDEN
BENGALURU - 560 030.
3 . SUBBAIAH K.G.,
S/O GANAPATHI K.,
MAJOR,
RESIDING AT PRIDE ENCHANTA
1ST MAIN ROAD,
RANGANATHAN COLONY
DEEPANJALI NAGARA,
BENGALURU - 560 026.
4 . PONAMMA UM
W/O ANKIT BHAUWALA,
AGED ABOUT 36 YEARS,
RESIDING AT NO.59,
10TH MAIN, 15TH CROSS,
WILSON GARDEN,
BENGALURU - 560 030.
... RESPONDENTS
(BY SRI K.NAGESHWARAPPA, HCGP FOR R-1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF
BNSS, PRAYING TO a) QUASH THE ORDER DATED 19.01.2026
PASSED BY THE XXXIX ACJM COURT IN CR.NO.271/2025 BY
ADUGODI P.S., THE 1st RESPONDENT POLICE AGAINST THE
PETITIONER, WHO ARE ACCUSED NO.1, FOR THE OFFENCES P/U/S
66(C), 66(D) OF I.T ACT, 2000, AND U/S 318(4) OF BNS ACT,
WHICH IS PENDING ON THE FILES OF HON’BLE XXXIX ACJM,
BANGALORE COURT AT BANGALORE AND DISMISS THE
COMPLAINT; b) DIRECT THE POLICE 1st RESPONDENT TO RELEASE
THE ACCUSED PERSON.
3
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 04.02.2026 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON’BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.1 is before this Court calling in
question an order dated 19-01-2026 passed by the Senior Civil
Judge and XXXIX Additional Chief Judicial Magistrate, Bengaluru in
Crime No.271 of 2025 registered for offences punishable under
Section 66C and 66D of the Information Technology Act, 2000 (‘the
Act’ for short) and Section 318(4) of the BNS.
2. Heard Sri Syed Khaleel Pasha, learned counsel appearing
for the petitioner and Sri K. Nageshwarappa, learned High Court
Government Pleader appearing for respondent No.1.
3. Facts, in brief, germane are as follows:-
3.1. Three complainants come together and register a
complaint against two persons – one, the petitioner/accused No.1
4and the other, wife of the petitioner/accused No.2. Petitioner along
with his wife introduced themselves as Yoga teachers and started
running a Company by name Jai Bhairavi Devi (‘JBD’) Financial
Solutions. The investments were solicited by opening a website. The
respondents/complainants were the investors. The complainants are
said to have invested a total sum of ₹39,20,000/- on a bank
transfer from their respective accounts. A total collection of ₹98/-
lakhs was transferred from the petitioner’s account to his wife’s
account. Alleging foul play, a complaint comes to be registered on
03-12-2025 for criminal breach of trust, misappropriation and
causing wrongful loss. Based on the said complaint, a crime in
Crime No.271 of 2025 comes to be registered for the afore-quoted
offences on 09-12-2025. All the offences were punishable with
imprisonment of seven years or less.
3.2. The Police wanted to serve notice under Section 35(3) of
the BNSS and began to search for accused No.1. Accused No.1
dodged the police for more than 40 days and finally the Police
traced him in Cuddalore, Tamil Nadu, and served the notice under
Section 35(3) of the BNSS. Since the petitioner had refused to
5
cooperate, he was taken into custody at 5.45 p.m. on 17-01-2026.
An arrest intimation was issued to the relatives along with grounds
of arrest. He was produced before the Magistrate on 17-01-2026 at
9.32 p.m. at his home office, where the Advocate for the accused
challenged the arrest contending that it was illegal. On 19-01-2026
he was produced before the jurisdictional Magistrate at Bengaluru
and a remand application was filed. On 19-01-2026 the concerned
Court passes an order of arrest. This is what is challenged in the
case at hand.
4. The learned counsel appearing for the petitioner would
vehemently contend that the learned Magistrate has declined to
accept plethora of submissions with regard to the illegal arrest of
the petitioner. He would contend that the Police have failed to
digitally or physically serve the notice under Section 35(3) of the
BNSS on the petitioner; the Police have failed to observe the
guidelines rendered by the Apex Court in SATENDER KUMAR
ANTIL v. CENTRAL BUREAU OF INVESTIGATION, [(2022) 10
SCC 51], in not serving notice under Section 35(3) of the BNSS
which is mandatory and its violation would be violative of Article 22
6
of the Constitution of India. The Police have failed to serve grounds
of arrest on the petitioner. In the event the petitioner has not
cooperated, it is for the Police to draw a mahazar that he has
refused to accept the notice, intimate to the higher authorities and
then take him to custody. Even on merits, it does not disclose a
dishonest intention at the inception. The matter is purely civil in
nature. There is delay in lodging FIR. He would submit that his right
of personal liberty under Article 21 is violated.
5. Per contra, the learned Additional State Public Prosecutor
Sri B.N.Jagadeesha appearing for respondent No.1 would
vehemently refute the submission to contend that there is no
violation of guidelines laid down in SATENDER KUMAR ANTIL’s
case. The Police tried to serve notice under Section 35(3) of the
BNSS on the petitioner several times. The Police made every effort
since the date of registration of FIR by calling him for over 40 days.
He kept on moving from one place to another to escape arrest.
Finally, they got him at Cuddalore and when they tried to serve
35(3) notice, he refused to accept, did not cooperate with the
police. Therefore, he was arrested. The arrest intimation and
7
grounds of arrest were furnished to the petitioner and he was
produced before the Magistrate within 24 hours. There is no
violation of any law for the petitioner to project.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts and link in the chain of events are
a matter of record. It would suffice for a resolution of the lis to
narrate facts, from the day on which the complaint comes to be
registered. A complaint comes to be registered alleging cheating,
fraud, misappropriation by the petitioner and his wife, accused Nos.
1 and 2. Based on the said complaint a crime come to be
registered on 09-12-2025. The petitioner was not traceable. The
learned Additional State Public Prosecutor has produced call record
details and geo-location of the petitioner to contend that he has
been moving from one place to another dodging service of notice.
Finally, his location was found in Cuddalore. On 17-01-2026 after
about 40 days of registration of crime Police moved to serve 35(3)
8
notice on the petitioner at Cuddalore. The CDR details also show
that the Police were trying to call and contact the petitioner for the
purpose of investigation. A notice that was sought to be served
against the petitioner, one among the few, reads as follows:
“Notice U/s 35(3) Bharatiya Nagarik Suraksha Sanhita
Date:16/01/2026
To,
Yugadev R
No-42A, Irusappan Street,
Cuddalore Tamilnadu-607003In exercise of the powers conferred under section 35(3)
of BNSS, I hereby inform you that during the investigation of
FIR/Case No.271/2025 U/s 66(c) 66(d) Information
Technology Act & 318(4) BNS registered at Adugodi Police
Station, Bangalore city, it is revealed that there are reasonable
grounds to question you to as certain facts and circumstances
from you, in relation to the present investigation. Hence you are
directed to appear before me at 11:00 am on 18/01/2026 at
Adugodi Police Station Bangalore City Karnataka.
You are directed to comply with all and/or the following
directions.
a) You will not commit any offence in future.
b) You will not tamper with the evidences in the case in any
manner whatsoever.
c) You will not make any threat, inducement, or promise to any
person acquainted with the fact of the case so has to
dissuade him from disclosing, such facts to the court or to
the police officer.
9
d) You will appear before the court as and when required /
directed.
e) You will join the investigation of the case as and when
required and will cooperate in the investigation.
f) You will disclose all the facts truthfully without concealing
any part relavent for the purpose of investigation to reach to
the right conclusion of the case.
g) You will produce all relavent documents/material required for
the purpose of investigation.
h) You will render your full co-operation/assistance in
apprehension of the accomplice.
i) You will not allow in any manner destruction of any evidence
relevant for the purpose of investigation/ trial of the case.
Failure to attend/comply with the terms of this notice,
can render you liable for arrest under section 36 BNSS.
Enclosures:
Copy of FIR No.271/2025.
Investigation officer.
Sd/-
Police Inspector
Adugodi Police Station
Bengaluru – 560 030.”
The Police have tried to issue notice to the petitioner in the past as
well, which are found in the investigation papers. The petitioner was
finally found on 17-01-2026. On 17-01-2026 the Police record the
following:
".... .... ....
10
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11
The arrest intimation was issued to the petitioner, which reads as
follows:
“Arrest Intimation
You are here by informed that you are arrested on 17-01-2026, at
05:45pm in Adugodi Police Station Cr No. 271/2025 U/s 66(c), 66(d) IT
Act & 318(4) BNS Act 2023. Arrest formalities are followed as per
Honourable Supreme Court guidelines. You have a right to contact your
relatives/friends/advocates in this regard.
Accused Signature:
A-1-Yugadev R S/o M Raju, 35 Years
No.424, Irusapan Street, Cuddalore OT, Cuddalore,
Tamil nadu-607003.
Sd/-
Investigating Officer
Sd/-
POLICE INSPECTOR
ADUGODI POLICE STATION
BANGALORE CITY – 560 030Arrest Intimation to Relatives
You are here by informed that your relative Yugadev R S/o M Raju, 35
Years was arrested by following Honourable Supreme Court guidelines on
17/01/2026, at 05:45pm in Adugodi Police Station Cr No. 271/2025 U/s
66(c), 66(d) IT Act & 318(4) BNS Act 2023. He is kept in Adugodi Police
Station until production before 39th ACJM Court, Bangalore city.
Accused Signature:
Accused Relative Signature:
Arrest Intimation given his father
through Phone his Mo
No.9629303506Investigating Officer
12Sd/-
POLICE INSPECTOR
ADUGODI POLICE STATION
BANGALORE CITY-560030.
Medical Examination Memo
You are here by informed that you are arrested on 17/01/2026, at
07:45 Hrs in Adugodi Police Station Cr No. 271/2025 U/s 66(c), 66(d) IT
Act & 318(4) BNS Act 2023. Seeking your opinion whether you are
interested to undergo medical examination or not?
Accused Opinion: Needed/ Not needed
Accused Signature: Sd/-
Investigating Office
Sd/-
POLICE INSPECTOR
ADUGODI POLICE STATION
BANGALORE CITY-560030″
A medical examination was also drawn. Later, the grounds of
arrest were also served upon the petitioner and the petitioner was
produced before the Magistrate at Cuddalore at 9.32 p.m. The
petitioner was then brought before the jurisdictional Magistrate at
Bengaluru after conduct of a medical examination and on
19-01-2026 the impugned order is passed. It reads as follows:
“CR.No.271/2025
Accused was produced by PSI Raghavendra HC 11759, PC
16079 of Adugudi PS at 9:32pm on 17/1/2026 at home office
Mr.SKP advocate filed memo and vakalath for accused by name
13Yugadev aged 35 years. Accused advocate stated arrest is illegal
apposed police custody which is sought by the IO. Heardwhether illegal arrest, order on 18/1/2026(Sunday) on
19/1/2026 (Monday) as necessary order has to be passed,
whether arrest is illegal or not, hence accused if ordered to be
taken back to be retained police station on legality of arrest.
Sd/-
19/1/2026
ORDER ON ARREST
Accused No.1 advocate has contended that accused No.1 was
illegally arrested by not complying notice formalities to be given
to accused as offence is punishable below 7 years as accused
have been charge sheet for offence under section 66(c) 66(d) of
Information Technology Act and under section 318(4) of BNSThe accused advocate has referred on citation of Hon’ble
SC in Satander Kumar Antil VS CBI and another
judgement of supreme court misapplication
No.2034/2022 and MA 1849/2021 in SLP CC
No.5191/2021. The accused advocate contend that
physical copy of notice is required to be given to the
accused, instead of whatsapp and other electronic mode
of intimating accused about the charge offence alleged
against the accused and to seek accused cooperation to
investigation based on above citation.
On the other hand learned Sr APP has addressed arguments
that CD has been produced wherein IO has gone to the cadlur of
TamilNadu as accused keeps changing his address from Tamil
Nadu by obtaining passport (From DCP) to travel to Tamil Nadu
on 16/1/2026 as per record have reached TN and on 17/1/2026
at 6:40am on verification of accused address have gone to the
residence address of accused No.1 and accused has been given
the physical notice that accused No.1 is stated to have refused
to receive physical notice, the Adugudi PS has produced CD,
letter address to local Tamil Nadu police dated 17/1/2026 report
on non cooperation of accused 1 on refusing to receive notice.
The above documents reveal that accused No.1 has fail to serve
notice which was taken by Adugudi PS to receive on the accused
14The Learned S, APP has referred on (Asif Nasruddin Najjushan
Diwan VS State of Gujarat where 318(4) anticipatory bail has
been rejected observing that offence involved in white collar and
socioeconomic offence which is not only against individual and if
it observed offence against larger social interest.
In the present case the present crime involve around worth
Rs.98,42,501/-belonging to one complainant has been alleged
to have been taken by the accused, which is serious crime which
is non bailable in nature.
As per section 35(4) when accused cooperate for
investigation by receiving notice accused will not be
arrested if accused refuse to receive notice in such an
case ground of arrest are by the Adugodi PS as to why
arrest has warranted in the present crime situation
where accused 1 started to raise galata taking help of
other local people and has not cooperated for
investigation hence this court is of the opinion that arrest
is warranted in this situation which does not effect the
Article of the constitution.
The Adugodi PS has sought for police custody
stating ground that the accused No.1 has transferred
amount of Rs.98,42,501/- to his wife A2 and A2 has
transferred to various shares to collect information about
the above, to take account statement of A2, to check
website launched by accused, upon which the
complainant has believed to invest amount wherein the
accused No.1 claimed that they had availed permission
from SEBI to check the genuinity and precision CEBI and
to take the trading account details wherein accused is
stated to have invested amount of complainant to take
unlawful gain hence the court opinion that the arrest in
the present case is not illegal or it is the accused, when
he is given opportunity to receive notice and cooperate to
investigation has not cooperated for investigation which
has warranted arrest and police custody.
Hence police custody is given to PS for a days with
following condition till 27/1/2026 from 19/1/2026 condition are
typed Above order is passed at 4:30pm on 19/1/2026 to avoid
delay.
15
Received accused No.1
And PC warrant
Sd/- 6633
For the……………
Sr Civil Judge 39th ACJM
19/1/2026″
(sic)
(Emphasis added at each instance)
The petitioner challenges the said order on the aforesaid grounds.
8. The grounds of challenge need not detain this Court for long
or delve deep into the matter. In its judgment dated 15-01-2026,
the Apex Court in SATENDER KUMAR ANTIL v. CBI1, has held as
follows:
"........ ......... .........
DISCUSSION
16. An investigation by a police officer generally begins with the
recording of information regarding an offence. It is a process
which is primarily aimed at the ascertainment of facts and
circumstances surrounding an alleged crime and involves the
police officer proceeding to the spot of occurrence to collect
evidence and ends with the formation of an opinion as to
whether, on the basis of the material collected, there is a case to
place the accused before a Magistrate for trial and, if so, taking
the necessary steps for the same by filing a charge-sheet. This
1
2026 SCC OnLine SC 162
16
has been succinctly dealt with by this Court in the case of State of
Uttar Pradesh v. Bhagwant Kishore Joshi, (1964) 3 SCR 71 in the
following manner:
“17. What is investigation is not defined in the Code
of Criminal Procedure; but in H.N. Rishbud and Inder
Singh v. State of Delhi [(1954) 2 SCC 934 : (1955) 1 SCR
1150, 1157-58] this Court has described, the
procedure, for investigation as follows:
“Thus, under the Code investigation consists generally
of the following steps, (1) Proceeding to the spot, (2)
Ascertainment of the facts and circumstances of the
case, (3) Discovery and arrest of the suspected
offender, (4) Collection of evidence relating to the
commission of the offence which may consist of (a)
the examination of various persons (including the
accused) and the reduction of their statements into
writing, if the officer thinks fit, (b) the search of
places of seizure of things considered necessary for
the investigation and to be produced at the trial, and
(5) formation of the opinion as to whether on the
material collected there is a case to place the accused
before a Magistrate for trial and if so taking the
necessary steps for the same by the filing of a charge-
sheet under Section 173.”
This Court, however, has not said that if a police officer
takes merely one or two of the steps indicated by it, what he
has done must necessarily be regarded as
investigation. Investigation, in substance, means
collection of evidence relating to the commission of the
offence. The Investigating Officer is, for this purpose,
entitled to question persons who, in his opinion, are
able to throw light on the offence which has been
committed and is likewise entitled to question the
suspect and is entitled to reduce the statements of
persons questioned by him to writing. He is also
entitled to search the place of the offence and to
search other places with the object of seizing articles
connected with the offence. No doubt, for this purpose
he has to proceed to the spot where the offence was
committed and do various other things. But the main
object of investigation being to bring home the offence
to the offender the essential part of the duties of an
Investigating Officer in this connection is, apart from
arresting the offender, to collect all material necessary
17
for establishing the accusation against the offender.
Merely making some preliminary enquiries upon
receipt of information from an anonymous source or a
source of doubtful reliability for checking up the
correctness of the information does not amount to
collection of evidence and so cannot be regarded as
investigation. In the absence of any prohibition in the
Code, express or implied, I am of opinion that it is
open to a police officer to make preliminary enquiries
before registering an offence and making a full scale
investigation into it…”
(emphasis supplied)
17. An arrest, being an act done by a police officer in
furtherance of an investigation, is discretionary and
optional to be applied on the facts of a particular case.
Section 35 of the BNSS, 2023 provides for situations where
a person may be arrested by a police officer, without a
warrant.
Section 35 of the BNSS, 2023
“35. When police may arrest without warrant.–
(1) Any police officer may without an order from a
Magistrate and without a warrant, arrest any person–
(a) who commits, in the presence of a police officer,
a cognizable offence; or
(b) 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 punishable with
imprisonment for a term which may be less than
seven years or which may extend to seven years
whether with or without fine, if the following
conditions are satisfied, namely:–
(i) the police officer has reason to believe on the
basis of such complaint, information, or
suspicion that such person has committed
the said offence;
(ii) the police officer is satisfied that such arrest
is necessary–
(a) to prevent such person from committing
any further offence; or
18
(b) for proper investigation of the offence;
or
(c) to prevent such person from causing the
evidence of the offence to disappear or
tampering with such evidence in any
manner; or
(d) to prevent such person from making any
inducement, threat or promise to any
person acquainted with the facts of the
case so as to dissuade him from
disclosing such facts to the Court or to
the police officer; or
(e) as unless such person is arrested, his
presence in the Court whenever required
cannot be ensured,
and the police officer shall record while making such
arrest, his reasons in writing:
Provided that a police officer shall, in all cases where
the arrest of a person is not required under the
provisions of this sub-section, record the reasons in
writing for not making the arrest; or
(c) against whom credible information has been received
that he has committed a cognizable offence punishable
with imprisonment for a term which may extend to more
than seven years whether with or without fine or with
death sentence and the police officer has reason to believe
on the basis of that information that such person has
committed the said offence; or
(d) who has been proclaimed as an offender either under
this Sanhita or by order of the State Government; or
(e) in whose possession anything is found which may
reasonably be suspected to be stolen property and who
may reasonably be suspected of having committed an
offence with reference to such thing; or
(f) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from
lawful custody; or
(g) who is reasonably suspected of being a deserter from
any of the Armed Forces of the Union; or
(h) who has been concerned in, or against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed
at any place out of India which, if committed in India,
would have been punishable as an offence, and for which
19he is, under any law relating to extradition, or otherwise,
liable to be apprehended or detained in custody in India;
or
(i) who, being a released convict, commits a breach of any
rule made under sub-section (5) of Section 394; or
(j) for whose arrest any requisition, whether written or
oral, has been received from another police officer,
provided that the requisition specifies the person to be
arrested and the offence or other cause for which the
arrest is to be made and it appears therefrom that the
person might lawfully be arrested without a warrant by
the officer who issued the requisition.
(2) Subject to the provisions of Section 39, no person
concerned in a non-cognizable offence or against whom a
complaint has been made or credible information has been
received or reasonable suspicion exists of his having so
concerned, shall be arrested except under a warrant or order
of a Magistrate.
(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 him or at such other place as
may be specified in the notice.
(4) Where such a notice is issued to any person, it
shall be the duty of that person to comply with the
terms of the notice.
(5) Where such person complies and continues to
comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice unless,
for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested.
(6) Where such person, at any time, fails to comply
with the terms of the notice 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 offence mentioned in the
notice.
(7) No arrest shall be made without prior permission of an
officer not below the rank of Deputy Superintendent of Police
in case of an offence which is punishable for imprisonment of
less than three years and such person is infirm or is above
sixty years of age.”
20
(emphasis supplied)
18. Section 35(1) of the BNSS, 2023, through the use of the
word “may,” makes the position of law rather clear that the power
of arrest is discretionary and optional. The power of arrest under
Section 35(1)(a) to Section 35(1)(j) of the BNSS, 2023 are
distinct and different from each other, with the commonality
being an offence which is cognizable in nature.
19. To attract the power of arrest under
Section 35(1)(b) of the BNSS, 2023, the conditions
mentioned thereunder ought to be complied with
scrupulously. Section 35(1)(b)(i) and
Section 35(1)(b)(ii) of the BNSS, 2023 must be read
together, meaning thereby that compliance with
Section 35(1)(b)(i) of the BNSS, 2023 is a sine qua non in
all cases of arrest.
20. Section 35(1)(b)(i) of the BNSS, 2023 speaks about
the “reason to believe” on the part of the police officer.
Such a reason to believe should be formed on the basis of a
complaint, information, or suspicion that the person
concerned has committed the offence. However, this alone
would not suffice. Additionally, any one of the conditions
mentioned under Section 35(1)(b)(ii) of the BNSS,
2023 must also be satisfied. In other words, it is not
required that all the conditions mentioned under
Section 35(1)(b)(ii) of the BNSS, 2023 should be available,
but only the existence of one of them that is required.
21. After being satisfied that there is a necessity of arrest,
a police officer is bound to record his reasons either for
arrest, as provided for under Section 35(1)(b) of the BNSS,
2023, or for merely issuing a notice under Section 35(3) of
the BNSS, 2023. Section 35(1)(b) of the BNSS, 2023, thus,
carves out an exception, with its inbuilt safeguards.
22. Suffice it is to state that an investigation can go on even
without an arrest. While undertaking the exercise of collecting the
evidence for the purpose of forming his opinion over the
commission of a cognizable offence, a police officer shall pose a
21
question, to himself, on the necessity of an arrest. This safeguard
is provided as, in any case, the power to arrest an accused person
is always available with a police officer even after he records his
reasons, in writing, for not doing so at an earlier stage.
Joginder Kumar v. State of UP, (1994) 4 SCC 260
“20…No arrest can be made because it is lawful for
the police officer to do so. The existence of the power
to arrest is one thing. The justification for the exercise
of it is quite another. The police officer must be able to
justify the arrest apart from his power to do so. Arrest
and detention in police lock-up of a person can cause
incalculable harm to the reputation and self-esteem of
a person. No arrest can be made in a routine manner
on a mere allegation of commission of an offence made
against a person. It would be prudent for a police
officer in the interest of protection of the
constitutional rights of a citizen and perhaps in his
own interest that no arrest should be made without a
reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of a
complaint and a reasonable belief both as to the
person’s complicity and even so as to the need to
effect arrest. Denying a person of his liberty is a
serious matter. The recommendations of the Police
Commission merely reflect the constitutional concomitants of
the fundamental right to personal liberty and freedom. A
person is not liable to arrest merely on the suspicion of
complicity in an offence. There must be some reasonable
justification in the opinion of the officer effecting the
arrest that such arrest is necessary and justified.
Except in heinous offences, an arrest must be avoided
if a police officer issues notice to person to attend the
Station House and not to leave the station without
permission would do.”
(emphasis supplied)
23. Section 35(3) of the BNSS, 2023, once again, reiterates
the object of the enactment that an arrest by a police
officer is not mandatory in all cases. This provision applies
to all cognizable offences. However, insofar as the offences
punishable with imprisonment up to a period of 7 years are
concerned, this provision will have to be read along with
22
Section 35(1)(b) of the BNSS, 2023, and its proviso which
mandates the furnishing of reasons, in writing, for both,
making an arrest and when there is no requirement to do
so. As stated above, the requirement of not arresting an
accused is qua the stage of issuing notice under
Section 35(3) of the BNSS, 2023. Hence, it is amply clear
that a harmonious construction of Section 35(1)(b) and
Section 35(3) of the BNSS, 2023 needs to be made.
Satender Kumar Antil v. Central Bureau of Investigation, 2025
SCC OnLine SC 1578
“22. Section 35(4) of the BNSS, 2023 imposes a
duty on the recipient of the notice to the effect that
once the notice is served, the person must comply with
every term of the notice. Section 35(5) of the BNSS,
2023 provides that as long as the person to whom the
notice is issued, appears as is required and continues
to comply with the notice, they cannot be arrested in
relation to the alleged offence. Arrest may be made
only if the Investigating Agency records specific
reasons as to why the arrest is necessary.”
(emphasis supplied)
24. Section 35(5) of the BNSS, 2023 facilitates the liberty
of a person by imposing an implied prohibition of arrest
when a person complies with a notice issued under
Section 35(3) of the BNSS, 2023. This provision reiterates
the fact that any subsequent arrest, being an exception, is
warranted only when a police officer forms an opinion for
such an arrest, which he is duty bound to record, in
writing, by furnishing adequate reasons.
25. With respect to the submission made by the leaned
Amicus, qua the contradiction in the reasoning of the High Court
of Bombay in Chandrashekhar Bhimsen Naik (supra), on a reading
of the judgment, we did not find any contradiction, as stated. The
judgment has clearly dealt with the mandatory compliance of the
provisions of Section 35 of the BNSS, 2023, by the police officer.
23
26. Hence, we give our imprimatur to the views expressed
by the High Court of Bombay and, as already observed by
us in this order that, as a matter of course, a notice under
Section 35(3) of the BNSS, 2023 is to be issued to an
accused or any individual concerned, qua an offence
punishable with imprisonment up to 7 years and, that, as
long as a person to whom a notice under Section 35(3) of
the BNSS, 2023 is issued has complied and continues to
comply with the terms of the notice then, as per
Section 35(5) of the BNSS, 2023, it is not open for the
police officer to arrest him unless, for reasons to be
recorded, the police officer is of the opinion that he ought
to be arrested.
Satender Kumar Antil v. Central Bureau of Investigation, 2025
SCC OnLine SC 1578
“23. Section 35(6) of the BNSS, 2023 lays down the
procedure to be followed in case of non-compliance
with the notice issued by the Investigating Agency
under Section 35(3) of the BNSS, 2023. Non-
compliance with a notice does not ipso facto mandate
arrest, as there lies a discretion with the Investigating
Agency, which must be of the opinion that the arrest of
the concerned person is necessary for the purpose of
investigation. In other words, failure to comply with
the notice does not lead to automatic arrest. Rather, it
is the last resort available to the Investigating Agency,
after due exercise of discretion regarding the necessity
of arrest.
24. Therefore, the abovementioned provision
contains an element of substantivity, which becomes
evident from the discretion provided to the
Investigating Agency. The substantive element is in
the nature of a safeguard, especially when the liberty
of an individual is involved.
25. The protection of one’s liberty is a crucial
aspect of the right to life guaranteed to each and every
individual, under Article 21 of the Constitution of
India (hereinafter referred to as the ‘Constitution’). The
procedure encapsulated in Section 35(6) of the BNSS,
2023, seeks to secure this fundamental right, from
24
encroachment by the relevant Authority, and
therefore, any attempt to interpret the provision as a
mere procedural one, would amount to rewriting the
provision itself.”
(emphasis supplied)
27. We have already clarified the position qua Section 35(6) of
the BNSS, 2023 in our earlier order dated 16.07.2025 wherein, it
has been stated that even assuming that the person to whom a
notice under Section 35(3) of the BNSS, 2023 has been issued,
fails to comply with the terms of the notice or is unwilling to
identify himself, an arrest is not a matter of course.
28. We have also clarified, on the earlier occasion, that the
procedure contained in Section 35(6) of the BNSS, 2023 has been
introduced on the touchstone of Article 21 of the Constitution of
India. These inbuilt safeguards are required to be complied with
by the police officer, in letter and spirit.
29. From a conspectus of the above, it is amply clear that
even if the conditions mentioned under Section 35(1)(b) of
the BNSS, 2023 are in existence, there can be no
mandatory arrest, as a police officer still may or may not
decide to do so.
30. While making an arrest under Section 35(6) of
the BNSS, 2023, after the stage of issuing a notice seeking
presence under Section 35(3) of the BNSS, 2023, the
circumstances and factors that were in existence at the
time of issuing the said notice shall not be taken into
consideration by a police officer while making an arrest
subsequently. In other words, for effecting an arrest under
Section 35(6) of the BNSS, 2023, it must be based upon
materials and factors which were not available with the
police officer at the time of issuing a notice under
Section 35(3) of the BNSS, 2023. Therefore, the power of
arrest under Section 35(6) of the BNSS, 2023 is to be
exercised rather sparingly, only under circumstances as
aforementioned.
25
31. Hence, we have no hesitation to hold that a notice
under Section 35(3) of the BNSS, 2023 to an accused or
any individual concerned, qua an offence punishable with
imprisonment up to 7 years, is the rule, while an arrest
under Section 35(6) read with Section 35(1)(b) of
the BNSS, 2023, is a clear exception.
CONCLUSION
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 concerned individual 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:
a. 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.
b. Consequently, the police officer shall ask himself the
question as to whether an arrest is a necessity or not, before
undertaking the said exercise.
c. 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.
26
d. 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.
e. 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 absolutely
warranted.
f. 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 Apex Court holds that Police can arrest a person for offences
punishable with imprisonment up to 7 years, provided they have
reason to believe under Section 35(1)(b)(i) of the BNSS that such
arrest is required for the reasons which fall within Section
35(1)(b)(ii). Issuance of notice under Section 35(3) for offences
punishable with imprisonment up to 7 years is the rule and arrest
under Section 35(6) read with Section 35(1)(b) is an exception. The
Apex Court holds that if Police have reasons to believe that the
accused is not cooperating with the investigation, those reasons to
believe can form the grounds of arrest. In the case at hand crime
is registered on 09-12-2025. Crime may be of any kind, but they
27are offences punishable with 7 years or less of imprisonment.
Therefore, resort to arrest at the outset is not the power of the
Police. It is only to serve a notice under Section 35(3) and direct
the accused to participate in the investigation. At the time when
the accused would not cooperate with receiving the notice or
otherwise, the accused would become open to arrest.
9. In the case at hand, the accused had dodged service of
notice for over 40 days. The call record details of the
accused/petitioner reveal that he was roaming all over the place
and finally the Police found him at Cuddalore after 40 days. The
Police have drawn reasons for arrest that the accused has been
absconding. The jurisdictional magistrate in the impugned order
also records that the petitioner did not accept the notice under
Section 35(3) of the BNSS and refused to cooperate with the
investigation and his arrest. Therefore, the arrest that is made is in
strict consonance with the findings of the Apex Court in the
aforesaid judgment.
28
10. The next submission is that instead of searching the
petitioner to serve the notice under Section 35(3) of the BNSS, it
could have been very well sent electronically. The Apex Court while
considering this very issue in its judgment dated 16-07-2025, in
SATENDER KUMAR ANTIL v. CBI2, has held as follows:
“…….. ……… ……..
18. The issue before us lies within a narrow compass –
whether the usage of electronic communication can also be
extended to the procedure governing the service of a
notice, contemplated under Section 35 of the BNSS, 2023.
To answer the same, a purposive interpretation must be given to
the BNSS, 2023, especially the aforementioned provision.
NOTICES BY THE INVESTIGATING AGENCY
19. The BNSS, 2023, keeping in tune with the erstwhile
provisions of the CrPC, 1973 provides for situations where a
person may be arrested by the Investigating Agency, without a
warrant.
Section 35 of the BNSS, 2023
“35. When police may arrest without warrant.–
(1) Any police officer may without an order from a Magistrate
and without a warrant, arrest any person–
(a) who commits, in the presence of a police officer, a
cognizable offence; or
(b) 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 punishable with imprisonment for a
term which may be less than seven years or which
may extend to seven years whether with or without2
2025 SCC OnLine SC 1578
29fine, if the following conditions are satisfied,
namely:–
(i) the police officer has reason to believe on the basis
of such complaint, information, or suspicion that
such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is
necessary–
(a) to prevent such person from committing any
further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the
evidence of the offence to disappear or
tampering with such evidence in any manner; or
(d) to prevent such person from making any
inducement, threat or promise to any person
acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the
Court or to the police officer; or
(e) as unless such person is arrested, his presence in
the Court whenever required cannot be ensured,
and the police officer shall record while making
such arrest, his reasons in writing:
Provided that a police officer shall, in all
cases where the arrest of a person is not
required under the provisions of this sub-
section, record the reasons in writing for not
making the arrest; or
(c) against whom credible information has been received
that he has committed a cognizable offence punishable
with imprisonment for a term which may extend to more
than seven years whether with or without fine or with
death sentence and the police officer has reason to believe
on the basis of that information that such person has
committed the said offence; or
(d) who has been proclaimed as an offender either under
this Sanhita or by order of the State Government; or
(e) in whose possession anything is found which may
reasonably be suspected to be stolen property and who
may reasonably be suspected of having committed an
offence with reference to such thing; or
(f) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from
lawful custody; or
30
(g) who is reasonably suspected of being a deserter from
any of the Armed Forces of the Union; or
(h) who has been concerned in, or against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed
at any place out of India which, if committed in India,
would have been punishable as an offence, and for which
he is, under any law relating to extradition, or otherwise,
liable to be apprehended or detained in custody in India;
or
(i) who, being a released convict, commits a breach of any
rule made under sub-section (5) of Section 394; or
(j) for whose arrest any requisition, whether written or
oral, has been received from another police officer,
provided that the requisition specifies the person to be
arrested and the offence or other cause for which the
arrest is to be made and it appears therefrom that the
person might lawfully be arrested without a warrant by
the officer who issued the requisition.
(2) Subject to the provisions of Section 39, no person
concerned in a non-cognizable offence or against whom a
complaint has been made or credible information has been
received or reasonable suspicion exists of his having so
concerned, shall be arrested except under a warrant or order
of a Magistrate.
(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 him or at such other place as
may be specified in the notice.
(4) Where such a notice is issued to any person, it
shall be the duty of that person to comply with the
terms of the notice.
(5) Where such person complies and continues to
comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice unless,
for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested.
(6) Where such person, at any time, fails to comply
with the terms of the notice or is unwilling to identify
himself, the police officer may, subject to such orders
31as may have been passed by a competent Court in this
behalf, arrest him for the offence mentioned in the
notice.
(7) No arrest shall be made without prior permission of an
officer not below the rank of Deputy Superintendent of Police
in case of an offence which is punishable for imprisonment of
less than three years and such person is infirm or is above
sixty years of age.”
(emphasis supplied)
20. Section 35 of the BNSS, 2023 provides for arrest of
persons by the Investigating Agency, ensuring that the concerned
person appears before the Investigating Agency and cooperates
with the investigation. The provision delineates the prerequisites
that must be fulfilled before a person can be arrested without a
warrant, keeping in mind the laudable objective of safeguarding
the liberty of an individual. The legislative intent behind the
provision is that of restricting arbitrary arrests.
21. Section 35(3) of the BNSS, 2023 mandates the service of
a notice whenever the Investigating Agency, on the basis of a
reasonable complaint, credible information or suspicion,
determines that a person may have committed a cognizable
offence, but does not deem the arrest of such person necessary.
In such a scenario, the Investigating Agency is mandated
to issue a written notice directing the person to appear
before it, or at such other place as may be specified in the
notice.
22. Section 35(4) of the BNSS, 2023 imposes a duty on
the recipient of the notice to the effect that once the notice
is served, the person must comply with every term of the
notice. Section 35(5) of the BNSS, 2023 provides that as
long as the person to whom the notice is issued, appears
as is required and continues to comply with the notice,
they cannot be arrested in relation to the alleged offence.
Arrest may be made only if the Investigating Agency
records specific reasons as to why the arrest is necessary.
32
23. Section 35(6) of the BNSS, 2023 lays down the procedure
to be followed in case of non-compliance with the notice issued by
the Investigating Agency under Section 35(3) of the BNSS, 2023.
Non-compliance with a notice does not ipso facto mandate arrest,
as there lies a discretion with the Investigating Agency, which
must be of the opinion that the arrest of the concerned person is
necessary for the purpose of investigation. In other words, failure
to comply with the notice does not lead to automatic arrest.
Rather, it is the last resort available to the Investigating Agency,
after due exercise of discretion regarding the necessity of arrest.
24. Therefore, the abovementioned provision contains
an element of substantivity, which becomes evident from
the discretion provided to the Investigating Agency. The
substantive element is in the nature of a safeguard,
especially when the liberty of an individual is involved.
25. The protection of one’s liberty is a crucial aspect of
the right to life guaranteed to each and every individual,
under Article 21 of the Constitution of India (hereinafter
referred to as the ‘Constitution’). The procedure
encapsulated in Section 35(6) of the BNSS, 2023, seeks to
secure this fundamental right, from encroachment by the
relevant Authority, and therefore, any attempt to interpret
the provision as a mere procedural one, would amount to
rewriting the provision itself.
26. Thus, service of a notice under Section 35 of
the BNSS, 2023 needs to be carried out in a manner that
protects this substantive right, as non-compliance with the
notice can have a drastic effect on the liberty of an
individual.
27. The Legislature, in its wisdom, has specifically
excluded the service of a notice under Section 35 of
the BNSS, 2023 from the ambit of procedures permissible
through electronic communication, that have been
delineated under Section 530 of the BNSS, 2023.
28. While interpreting a statute, the legislative intent is
to be gathered from a plain and simple reading of the
33
language employed in the provisions, in a purposive
manner, thereby upholding the objective behind the
enactment. On a plain reading of the BNSS, 2023, the
restrictions imposed by the Legislature on the use of
electronic communication, to only certain procedures,
precludes the use of electronic communication for any
other procedure, for which it has not been specifically
permitted by the BNSS, 2023.
29. This interpretation is countenanced by the objective
sought to be achieved by the BNSS, 2023. As highlighted
hereinbefore, the essence of Article 21 of
the Constitution imbues the BNSS, 2023, which reflects the
laudable objective of safeguarding the liberty of an
individual, while facilitating the investigation into and
adjudication of offences. The abovementioned restrictions
on the usage of the mode of electronic communication,
have been imposed in order to safeguard the right to life
and personal liberty, guaranteed to an individual by the
Constitution, from being impinged during the course of
criminal investigation and proceedings.
30. Hence, it is manifestly apparent that the Legislature
has particularly specified the circumstances in which usage
of modes of electronic communication is permissible, being
circumstances which do not have a bearing on the liberty
of an individual.
SUMMONS BY THE COURT
31. Another line of reasoning presented before this
Court, is regarding the permissibility of the usage of
electronic communication for the issuance of summons by
the Court, under the BNSS, 2023. To consider the same,
this Court must delve into the nature of proceedings
pertaining to a notice under Section 35 of the BNSS,
2023 vis-a-vis a summons under Sections 63, 64 and 71 of
the BNSS, 2023.
…….. ……… ……..
38. The contention of the applicant that a notice under
Section 35 of the BNSS, 2023 falls within the same
34
category as a summons under Section 71 of the BNSS,
2023, and therefore, since the latter allows electronic
mode of service, the former must also be permitted to be
transmitted electronically, cannot be accepted, for the
simple reason that a summons under Section 71 of
the BNSS, 2023, has no immediate bearing on the liberty of
an individual in case of its non-compliance. However, a
notice under Section 35 of the BNSS, 2023 could have an
immediate bearing on the liberty of the individual in case
of its non-compliance, as laid down under Section 35(6) of
the BNSS, 2023.
39. Furthermore,a summons issued by a Court under
Sections 63 or 71 of the BNSS, 2023, and a notice issued
by the Investigating Agency under Section 35 of the BNSS,
2023 travel on different footings and cannot be equated
with each other. A summons issued by a Court is a judicial
act, whereas a notice issued by the Investigating Agency is
an executive act. Hence, the procedure prescribed for a
judicial act cannot be read into the procedure prescribed
for an executive act.
EXPLICIT MENTION OF THE USAGE OF ELECTRONIC MODE
IN THE CONTEXT OF THE INVESTIGATING AGENCY
40. We further wish to take note of the fact that the BNSS,
2023 does not entirely preclude the use of electronic
communication by the Investigating Agency. The Legislature has
envisioned the use of electronic communication, during the course
of investigation, and upon completion of investigation by the
Investigating Agency, specifically provided for under
Sections 94(1) and 193(3) of the BNSS, 2023 respectively.
…….. ……… ……..
41. The usage of electronic communication by the
Investigating Agency, has only been provided for effecting
the procedure under Sections 94 and 193 of the BNSS,
2023.
42. Section 94 deals with issuance of summons, in an
electronic form, to produce a document. Section 193 deals with
the usage of electronic communication for forwarding the report
35
to a Magistrate, upon completion of the investigation, or to inform
the progress of the investigation to the informant or victim. None
of these procedures have any bearing on the liberty of an
individual.
43. Hence, when viewed from any lens, we are unable to
convince ourselves that electronic communication is a valid
mode of service of notice under Section 35 of the BNSS,
2023, since its conscious omission is a clear manifestation
of the legislative intent. Introducing a procedure into
Section 35 of the BNSS, 2023, that has not been
specifically provided for by the Legislature, would be
violative of its intent.”
(Emphasis supplied at each instance)
The Apex Court holds that electronic communication of the crime or
any other communication is not what the legislature has thought of.
Section 35(3) does not empower the Police to communicate an
electronic copy or by whatsapp the notice or copy of the FIR. It has
to be mandatorily given physically. Therefore, the Police have been
searching the petitioner to hand over physical copy of 35(3) notice
for 40 days. This would be enough circumstance to take the
petitioner into custody for non-cooperative behaviour of the
petitioner. No right of the petitioner, much less a constitutional
right is lost, in the police taking the petitioner into custody. All the
nuances of arrest are followed in the case at hand and the
petitioner is then taken into custody. Therefore, the order
36
impugned suffers from no illegality and does not deserve to be
quashed.
11. Finding no merit in the petition, the petition stands
rejected.
SD/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ