Affirming Arnesh Kumar Guidelines in the Context of the BNSS Act, 2023: High Court Directs Compliance with Section 35(3) (41A CrPC) Before Arrest; Binding Authority for Uttarakhand Courts
Summary
| Category | Data |
|---|---|
| Case Name | WPCRL/882/2025 of VINOD LAKHIRAM KANSWAL Vs STATE OF UTTARAKHAND |
| CNR | UKHC010125872025 |
| Decision Date | 18-08-2025 |
| Disposal Nature | DISPOSED |
| Judgment Author | Hon’ble Mr. Justice Pankaj Purohit |
| Court | High Court of Uttarakhand |
| Bench | Single Judge Bench |
| Precedent Value | Binding |
| Overrules / Affirms | Affirms existing precedent |
| Type of Law | Criminal Procedure |
| Questions of Law | Whether Section 35(3) of the BNSS Act, 2023 (under CrPC 41A) requires prior notice before arrest for offences punishable up to seven years |
| Ratio Decidendi |
For offences under Sections 420 and 506 IPC punishable up to seven years, arresting officers must comply with Section 35(3) of the BNSS Act, 2023 (equivalent to CrPC 41A) and the guidelines in Arnesh Kumar v. State of Bihar before effecting arrest. Failure to issue the prior notice renders the arrest susceptible to challenge. The petitioner must cooperate with investigation once proper notice is served. |
| Judgments Relied Upon | Arnesh Kumar v. State of Bihar and Another, (2014) 8 SCC 273 |
| Logic / Jurisprudence / Authorities Relied Upon | Application of Arnesh Kumar guidelines requiring notice and restraint in making arrests for non-heinous offences punishable up to seven years |
| Facts as Summarised by the Court |
The petitioner challenged FIR No. 0342/2024 under Sections 420 and 506 IPC and sought a direction against coercive steps including arrest without compliance with Section 35(3) BNSS Act. The offence carries maximum punishment of seven years. Counsel confined arguments to the requirement of prior notice under Arnesh Kumar. The Court directed the Investigating Officer to issue notice per Section 35(3) before arrest and ordered petitioner’s cooperation. |
| Citations | 2025:UHC:7224; (2014) 8 SCC 273 |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All investigating officers and subordinate courts in Uttarakhand |
| Persuasive For | Other High Courts in India |
| Follows | Arnesh Kumar v. State of Bihar and Another, (2014) 8 SCC 273 |
What’s New / What Lawyers Should Note
- The High Court applies and reaffirms the Arnesh Kumar guidelines under the BNSS Act, 2023, mandating prior notice (Section 35(3)) before arresting for offences punishable up to seven years.
- Investigating officers must issue notice as per BNSS Act 35(3)/CrPC 41A; arbitrary arrests in such cases will be vulnerable to challenge.
- Petitioners must cooperate with investigations once proper notice is served.
Summary of Legal Reasoning
- Offences under Sections 420 and 506 IPC carry a maximum punishment of seven years.
- Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 requires restraint in making arrests for offences punishable up to seven years and mandates notice under CrPC 41A.
- Section 35(3) of the BNSS Act, 2023 is pari materia to CrPC 41A; hence notice under BNSS Act must precede arrest.
- The Court directed strict compliance with Section 35(3) BNSS Act and held that failure to issue notice would make any arrest susceptible to legal challenge.
- The petitioner was ordered to cooperate with the investigation once notice is served.
Arguments by the Parties
Petitioner
- Relied on Arnesh Kumar guidelines to insist on prior notice under Section 35(3) BNSS Act before arrest.
State (Respondent No.1)
- No specific counter-arguments were recorded in the judgment.
Factual Background
The petitioner challenged FIR No. 0342 dated 24.10.2024 under Sections 420 and 506 IPC registered at P.S. Nehru Colony, Dehradun, seeking a direction against coercive steps including arrest without compliance with Section 35(3) of the BNSS Act, 2023. Learned counsel confined arguments to the necessity of adhering to Arnesh Kumar v. State of Bihar. The High Court directed compliance with Section 35(3) before arrest and disposal followed.
Statutory Analysis
- Section 35(3) BNSS Act, 2023 (corresponding to CrPC 41A) mandates prior notice before arrest for offences punishable up to seven years.
- The Court interpreted Section 35(3) to require notice and an opportunity for the accused to cooperate, in line with Arnesh Kumar.
Alert Indicators
- ✔ Precedent Followed – The judgment reaffirms the Arnesh Kumar guidelines.