1 14.aba.849.2026 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (ABA) NO.849 OF 2026 Sunil Bhanudas Tale ..vs.. State of Maharashtra - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.V. Sirpurkar, Advocate for the applicant. Ms S.S. Dhote, APP for the non-applicant/State. CORAM: M.M. NERLIKAR, J. DATE : 24.09.2026. Heard. 2. Apprehending arrest in connection with Crime No.628 of 2026 registered for the offence punishable under Sections 7, 7-A of Prevention of Corruption Act (‘the Act’) and 262 and 281 of the Bharatiya Nyaya Sanhita (BNS), 2023, the applicant prays for pre-arrest bail. 3. The FIR came to be lodged alleging that at the time of preparing spot panchanama the applicant demanded Rs.2000/- and further Rs.2000/- was demanded by the applicant for supplying the copy of charge-sheet and therefore, the trap was arranged, in which, another accused person was caught red handed, whereas the applicant fled the spot and attempted to run his vehicle on raiding party. 4. Learned Counsel for the applicant submits that the applicant being a constable demanded an amount of Rs.2,000/- from the complainant for providing a copy of the charge-sheet. The FIR discloses that a verification 2026:BHC-NAG:12790 2 14.aba.849.2026 Panchanama was conducted, during which the alleged demand was made by the applicant, however, he submits that there was no acceptance of the said bribe amount by the applicant. Further it is submitted that, the FIR was registered at a belated stage, since the incident occurred on 03.09.2026 whereas the FIR was registered on 04.09.2026. So far as the punishment prescribed under Section 7 of the Act is concerned it is imprisonment for a term which shall not be less than 3 years but may extend to 7 years and fine therefore, it is submitted that the applicant would be entitled to the benefit of notice under Section 35(3) of the BNSS. He further submits that, till today, the Investigating Officer has not issued notice to the applicant, which is mandatory on the part of the concerned Investigating Officer to issue notice under Section 35(3) of the BNSS. In support of his submission, he has relied upon the judgment of the Supreme Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and anr. (2026) 7 SCC, 311 and prayed for grant of pre-arrest protection to the applicant. 5. On the other hand, the learned APP vehemently opposed the application and submitted that, so far as the issuance of notice under Section 35(3) of the BNSS is concerned, he concedes to the fact that not only it is mandatory to issue notice but also it is the duty of the Investigating Officer to comply with the said provision. However, she submits that so far as the allegations against the applicant are concerned, merely because the maximum punishment prescribed under Section 7 of the Act is 7 years would not by itself give the applicant the 3 14.aba.849.2026 right to claim anticipatory bail as of right. She further submits that so far as the merits of the case are concerned, there are serious allegations against the applicant. The applicant being a police constable, has demanded Rs.2000/- from the complainant. When the trap was laid, at the relevant time the applicant was present and he has asked the complainant to pay the amount to another person. Accordingly, the amount was paid to that person and at the time of acceptance thereof, the raiding party conducted the raid and arrested the said person. The raiding party also attempted to arrest the applicant, however, he fled from the spot in his four- wheeler vehicle; while fleeing the applicant attempted to run over the members of raiding party with his vehicle. Under such circumstances, the applicant being a police constable, his conduct is highly objectionable and therefore, she prays for rejection of the present application. 6. I have considered the submissions of both the sides. It is not in dispute that the maximum punishment prescribed for the offence under Section 7 of the Act is imprisonment for a term which shall not be less than 3 years and which may extend to 7 years. So far as the law laid down by the Hon’ble Supreme Court in the case of Satender Kumar Antil (supra) is concerned, it would be useful to refer paragraph 31 to 33, which read as under : “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 4 14.aba.849.2026 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: 33.1. 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. 33.2. Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise. 33.3. 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. 33.4. A notice under Section 35(3) of the 5 14.aba.849.2026 BNSS, 2023 to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule. 33.5. 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. 33.6. 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.” 7. A bare reading of the aforesaid observations, makes it clear that issuance of notice under Section 35(3) of the BNSS is mandatory. It is for the Investigating Officer to follow the procedure, prescribed under the said provisions as well as principle laid down by the Supreme Court in its various judgments. 8. Merely because the maximum punishment prescribed is up to seven years, it does not give an absolute right to the applicant to seek anticipatory bail as a matter of right. So far as the FIR is concerned it is alleged that on 03.09.2026 a trap was laid and co- accused was caught red handed while accepting the bribe and accordingly, FIR was registered. The complainant was in need of charge sheet and therefore, he has approached the present applicant, the applicant has demanded Rs.2000/- from the complainant for providing the copy of charge-sheet. Accordingly, he has 6 14.aba.849.2026 reported the said incident to the Anti Corruption Bureau office on the very same day pursuant to which a trap was laid. The verification panchnama was recorded wherein the demand was made by the applicant of Rs.2,000/- and accordingly, the applicant has asked the complainant to handover the amount to one person, namely, Vijay Chauhan, who is a private person. It further appears that at the time of acceptance of the said amount, the raid was conducted and the said Vijay Chauhan was caught red-handed. At the relevant time, even the present applicant was present and he fled from the spot. It is important to note the conduct of the applicant in the present case that he fled from the spot and further he attempted to run over his vehicle on the raiding squad. Such conduct is unexpected and it is highly objectionable. Therefore, the applicant has not only obstructed the raiding party by trying to flee away from the spot but also tried to run over the vehicle on the raiding party. Under such circumstances, considering the demand by applicant and his conduct, I am not inclined to grant pre-arrest protection to the applicant. 9. Hence the application is rejected. (M.M. NERLIKAR , J. ) Trupti Signed by: Trupti D. Agrawal Designation: PA To Honourable Judge Date: 28/09/2026 18:38:02