44.BA.2899.2026.doc HARSHADA H. SAWANT (P.A.) IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO.2899 OF 2026 Omkar Balkrushna Gade and Ors. .. Applicants Versus The State of Maharashtra .. Respondent ....................  Mr. Nikitesh Kotangale a/w. Ms. Krishma Joshi, Mr. Amit Jaiswar, Mr. Suhas Sarvade and Mr. Nishant Singh, Advocates for Applicants.  Mr. Amit A. Palkar, APP for Respondent.  PSI – Ravindra B. Khamgal, Talegaon Dabhade Police Station. ................... CORAM : MILIND N. JADHAV, J. DATE : SEPTEMBER 10, 2026 P.C. : 1. Heard Mr. Kotangale, learned Advocate for Applicants and Mr. Palkar, learned APP for Respondent. 2. This is an Application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) seeking Bail in connection with C.R. No.109 of 2026 dated 09.04.2026 registered with Talegaon Dabhade Police Station for offences punishable under Sections 140(3), 311 and 3(5) of the Bharatiya Nyaya Sanhita, 2023. 3. Date of offense alleged is 08.04.2026. Mr. Kotangale has forthwith drawn my attention to the notice issued to both the Applicants under Section 35(3) of the BNSS. It is dated 10.04.2026 which was received by them on the same date. He would submit that 1 of 10 44.BA.2899.2026.doc when they were handed over this notice in the Police Station and when they had visited the Police Station to inquire about the arrest of their father who is also arraigned as an Accused in the present crime, without adhering to the statutory provisions under Section 35(4) read with Section 35(6) of the BNSS, the Applicants were forthwith arrested. 4. Mr. Palkar takes instructions from the concerned Investigating Officer who had issued the notice under Section 35(3) of the BNSS on 10.04.2026 who is standing behind him in the Court and in his usual fair-mindedness informs the Court that what Mr. Kotangale is submitting is correct. 5. There is no reason to disbelieve Mr. Kotangale for the simple reason that the notice under Section 47(1) read with (2) under the BNSS is also simultaneously issued alongwith the notice under Section 35(3) notice on the same date and time, copy of which is placed before me. Once this is the position then a clear aberration has been committed by the prosecution and the Investigating Officer. 6. Prima facie, Section 35(3) of the BNSS reads thus:- “35.(1) … (2) … (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 2 of 10 44.BA.2899.2026.doc him or at such other place as may be specified in the notice.” 7. The said notice itself states in clause No.8 that the Applicants will have to cooperate and comply with the provisions of Sections 35(4) and 35(6) of BNSS thereunder. The details of the concerned transaction for which investigation was underway is stated in clause Nos.1 to 7 of the said notice. 8. However, in view of non compliance of the provisions of subsections (3), (4) and (6) of Section 35 of the BNSS, the arrest of both the Applicants on the same date and at the same time while simultaneously handing over notices under the above Section 35 BNSS to them is therefore, illegal. Sub-section (6) categorically states that where such person at any time fails to comply with the terms of the notice, (issued under Section 35(3) of the BNSS) 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 offense mentioned in the notice. 9. This valuable statutory, mandatory procedure entails a very valuable right to a person who is sought to be arrested but in the present case non-compliance of this procedure and mandatory provision is prima facie fatal to the prosecution case wherein admittedly, the prosecution has arrested both the Applicants at the time of service of the notice under Section 35(3) of the BNSS itself. 3 of 10 44.BA.2899.2026.doc 10. Applicant No.2 is a student and a young offender of 20 years. He is studying and is about to take admission for diploma, according to Mr. Kotangale. His elder brother is the other accused person who is 24 years old. The Police on their part are required to be extremely sensitive in such matters. When they launch prosecution and arrest such young offenders, their life rather the future prospects of such young offenders, is at stake can get destroyed forever. I am not touching the merits of the matter, though they have been argued by Mr. Kotangale, primarily because it may have a different connotation but would like to determine the present Bail Application only on the basis of the aforesaid reason for the prosecution not having followed the due process of law after issuing notice under Section 35(3) of BNSS and directly arresting the Applicants. 11. Equally, Applicant No.1 is also a young person of 24 years of age. Both of them having been lodged in prison especially in the aforesaid facts and circumstances speaks volume about how the prosecution behaves in such matters. I would not say much but the Applicants have made out a clear case for grant of bail on account of the aforesaid mandatory violation and dereliction by the prosecution. 12. Present Bail Application is filed by Applicant Nos.1 and 2 who are both brothers, age 24 years and 20 years. In view of the aforesaid legal provisions not having been complied with, the bail 4 of 10 44.BA.2899.2026.doc application stands allowed in terms of prayer clause (b). The Applicants are granted bail on the following terms and conditions:- (i) Both Applicants are directed to be immediately released from prison in connection with Crime No.109 of 2026; (ii) Both Applicants are directed to be released on bail on furnishing P.R. Bond of Rs. 5,000/- each (Rs. Five Thousand only) with one or two surety / sureties of the like amount; (iii) Both Applicants shall co-operate with the conduct of trial and attend the Trial Court if so required and called upon. However their Advocates shall remain present on all the dates of hearing; (iv) Both Applicants shall not leave the country without prior permission of the Trial Court; (v) Both Applicants shall not influence any of the witnesses or tamper with the evidence in any manner; (vi) Both Applicants shall keep the Investigating Officer informed of their current address and mobile contact number and / or change of residence or mobile details, if any, from time to time, as applicable; and (vii) Any infraction of the conditions shall entail cancellation of bail granted to the Applicants. 5 of 10 44.BA.2899.2026.doc 13. It is clarified that the observations made in this order are limited for the purpose of granting Bail only and I have not made any observations on merits of the case. The trial shall be adjudicated on the strength of the evidence led and strictly on its own merits being uninfluenced with any of the prima facie observations made hereinabove in this order. 14. At this juncture, Mr. Kotangale persuades the Court to consider a larger point in question. He would submit that the prosecution in such matters when they issue notice under Section 35(3) of BNSS invariably is in a great rush and hurry to arrest the noticees and as has been done in the present case, the prosecution goes to arrest the noticees on the same day and date itself while serving the Section 35(3) notice by circumventing the due process of law. 15. He would submit and persuade the Court to pass appropriate directions in this regard so that it helps not only the prosecution in making a proper investigation but also ensures that the fabric of the Society does not get disturbed due to violation of a very valuable fundamental right which is given to the noticee to present himself and his case before the Investigating Officer when a notice under Section 35(3) of the BNSS is issued to him. 16. I fully concur with the submissions made by Mr. Kotangale. In the larger public interest such directions are absolutely necessary in 6 of 10 44.BA.2899.2026.doc today's times, especially when arrests are made by the Police Officers in a knee-jerk reaction manner which is prima facie seen in the present case presented before me. 17. That apart, the Investigating Officer should be extra cautious especially when a notice under Section 35(3) of the BNSS is issued in ascertaining and complying with the provisions of Section 35(4) read with Section 35(6) of the BNSS. If the he arrests the noticee simultaneously as has been done in the present case, the provisions of of Section 35(6) are rendered completely otiose and redundant infructuous. That is not the intention of the law as well as the legislature. Once the Investigating Officer has made up his mind and has issued a notice under Section 35(3) of the BNSS, it is mandatory and incumbent upon him to comply with the statutory provisions and ensure that before he arrests the noticee, he complies with the said provisions and satisfies himself. That is the intention of sub-section (6) of Section 35 of the BNSS as stated in the said provision. 18. That apart, sub-section (6) also states that on failure to comply, the police officers can obtain appropriate orders from the Competent Court. Nothing of this sort is done or applied in the present case. Here, both the Applicants were served with a notice under Section 35(3) of the BNSS but alongwith the said notice simultaneously, Section 47(1)(2) notice of informing them about their 7 of 10 44.BA.2899.2026.doc grounds of arrest was also served on them and they were immediately taken into custody. This can be easily deciphered from the twin notices placed before me. Mr. Kotangale has also touched upon the lis between the parties namely the Complainant, which, prima facie, according to him is of a civil nature altogether. 19. Attention is drawn to a decision of the Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and Another 1 wherein it was held that 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 relevant paragraph numbers are reproduced below for ease of reference:- “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 individual concerned 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 1 (2026) 7 SCC 311 8 of 10 44.BA.2899.2026.doc 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 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 is 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.’” 20. Be that as it may, this Court refrains from going into or opining about the said lis on merits. The Bail Application is determined on the above ground. The Registrar General of this Court is directed to send a copy of this order to Superintendents of Police in all districts across Maharashtra and all Commissioners of Police in Maharashtra to enable them to circulate it to all the Police Officers and Police Stations under their control, to adhere to the statutory provisions of the BNSS qua Section 35(3) and the procedure required to be followed thereunder before effecting arrest under Section 47(1)(2) of the BNSS. 21. I appreciate the assistance rendered by learned advocates Mr. Kotangale and Mr. Palkar (APP) for aiding and assisting the Court in passing the above directions and order. 9 of 10 44.BA.2899.2026.doc 22. Bail Application is allowed and disposed of in the above terms. H. H. SAWANT [ MILIND N. JADHAV, J. ] 10 of 10 HARSHADA HANUMANT SAWANT Digitally signed by HARSHADA HANUMANT SAWANT Date: 2026.09.11 11:17:47 +0530