For offenses punishable with imprisonment up to seven years, arrest is not mandatory; the investigating officer must follow the procedure of issuing a notice under Section 35(3) of BNSS (formerly Section 41-A CrPC) and adhere to the guidelines laid down in Arnesh Kumar.

The Court made the following:

ORDER

The Criminal Petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.,’)/Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) seeking to quash proceedings against petitioner/Accused No.2 in Cr.No.05 of 2026 on the file of Ajith Singh Nagar Police Station, NTR District, registered for the alleged offence punishable under Sections 318(4), 351(2) read with 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for brevity ‘the BNS’).

2. Heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor. Perused the record.

3. By and large, the allegation against the petitioner/Accused No.2 by Respondent No.2/de-facto complainant is civil in nature, inasmuch as an amount of Rs.7,79,000/- was allegedly taken by the petitioner for the purpose of purchasing land, and an agreement was entered into to that effect. The alleged offences levelled against the Petitioner/Accused No.2 are punishable with imprisonment for less than seven (07) years.

4. However, on a perusal of the FIR and the material placed on record, there is a prima facie case to consider the request of the petitioner under Section 528 of ‘the BNSS’. Nonetheless, the circumstances of the case necessitate a thorough and comprehensive investigation. The voice of the de-facto complainant cannot be stifled at the threshold.

5. The Hon’ble Supreme Court, in Practical Solutions Inc. v. State of Telangana , Criminal Appeal No.353 of 2026 (arising out of SLP (Criminal) Diary No.953 of 2026), on dated 19.01.2026 has held as follows:

“We also take notice of the fact that the petition before the High Court was to quash the FIR. In a petition where quashing of the FIR is prayed for, the High Court should not have passed an order directing the Investigating Officer to comply with Section 41 -A of the Code of Criminal Procedure, 1973, because it indirectly amounts to granting a relief which the High Court could have considered only if a prima facie case for quashing of the FIR is made out.”

6. Further, the Hon’ble Supreme Court, in Satender Kumar Antil v. Central Bureau of Investigation¹Special Leave Petition (Crl.) No.5191 of 2021, dated 15.01.2026, has held at paragraph No.33 as under:

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.

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, b