IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THE HON'BLE SRI JUSTICE E.V.VENUGOPAL WRIT PETITION No.7713 of 2026 DATED : 13-03-2026 Between :

Mohammed Shareef.

… Petitioner.

And The State of Telangana, Rep.by its Principal Secretary, Home Department, Secretariat Buildings, Saifabad, Hyderabad and others.

… Respondents.

ORDER :

The present writ petition is filed by the petitioner under Article

226 of the Constitution of India, seeking the following relief :

“…to declare the action of the respondent No.5 in issuing notice under Section 35(3) of the BNSS to accused No.2 in Crime No.12 of 2026 of PS Mehdipatnam, registered for the offence under Section 109(1), 352 r/w 3(5) of the BNS, instead of arresting the said accused and producing her before the jurisdictional Magistrate, as illegal, arbitrary and contrary to the procedure established by law and consequently direct the respondent Police to conduct a fair and proper investigation and take appropriate action against the accused in accordance with law...”

2. Heard Sri Gulam Rabbani, learned counsel appeared on-

line on behalf of Sri Mohammed Azeem, learned counsel for the petitioner and Sri Laxmikanth Reddy, learned Assistant Government Pleader appearing on behalf of learned Government Pleader for Home Sri Mahesh Raje.

3. The petitioner challenges the action of respondent No.5 in issuing a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 to accused No.2 in Crime No.12 of 2026 of PS Mehdipatnam, which was registered for offences under Sections 109(1), 352 read with 3(5) of the Bharatiya Nyaya Sanhita, 2023. It is the petitioner’s contention that instead of issuing such notice, the police ought to have arrested accused No.2 and produced her before the jurisdictional Magistrate in accordance with the procedure established by law. The petitioner therefore contends that the action of respondent No.5 is illegal, arbitrary and contrary to the statutory procedure and seeks a direction from the Court to the respondent police authorities to conduct a fair investigation in the said crime.

4. The learned counsel for the petitioner submits that the action of respondent No.5 in issuing a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 is contrary to the procedure contemplated under law. It is contended that when the allegations disclose commission of cognizable offences under the Bharatiya Nyaya Sanhita, 2023, the Investigating Officer ought to have exercised the power of arrest and produced the accused before the jurisdictional Magistrate, instead of merely issuing a notice. It is further submitted that the impugned action reflects a failure on the part of the police to follow the statutory mandate governing investigation in cognizable offences, thereby rendering the action arbitrary and unsustainable in law. The learned counsel therefore contends that such deviation from the prescribed procedure adversely affects the fairness of the investigation and prays that appropriate directions be issued to ensure that the investigation is conducted strictly in accordance with law. 5. Per contra, learned Assistant Government Pleader, submits that the action of the police in not arresting accused No.2, Sameena Rabbani and issuing notice under Section 35(3) BNSS is entirely proper, lawful and justified. The allegations in the FIR and subsequent investigation clearly indicate that the primary and violent acts of spraying pepper spray, stabbing LW-2 and assaulting LW-1 were committed exclusively by accused No.1, Mosin Nawaz. Accused No.2’s involvement is limited to abuse and minor altercation and she has voluntarily surrendered and cooperated with the investigation. In such circumstances, custodial detention is not warranted and the police have acted correctly in exercising discretion, securing her presence through a statutory notice rather than unnecessary arrest. Arresting her without necessity would be disproportionate and prejudicial, especially