[Cites 3, Cited by 0]
Bombay High Court
Sunil Vithhal Ranjane vs The State Of Maharashtra And Anr. on 15 May, 2026
2026:BHC-KOL:3802 11-ABA-195-2026 (Cr).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CRIMINAL APPELLATE JURISDICTION
CR. ANTICIPATORY BAIL APPLICATION NO. 195 OF 2026
Sunil Vithhal Ranjane ...Applicant
Versus
The State Of Maharashtra And Anr. ...Respondents
.....
Adv. Chaitanya Pendse a/w Adv. Rohan Hogle, Adv. Shailesh Chavan
and Adv. Sujit Nikam, for the Applicant.
Adv. Rushikesh Chandrashekhar Barge (though V.C.) a/w Adv. Viren S.
Ghatge, Advocate for Respondent No.3-Intervenor.
Mr. Pankaj Deokar, learned APP for the Respondent-State.
.....
CORAM : PRAVIN S. PATIL, J.
DATE : 15th May, 2026.
(Vacation Court)
P.C. :
1. Heard.
2. By this application, the applicant is seeking anticipatory bail in
connection with Crime No.83 of 2026 registered with the Satara City
Police Station, Dist. Satara, for the offences punishable under Sections
316(2) and 318(4) of Bhartiya Nyaya Sanhita, 2023 (for short 'BNS').
3. The only issue raised by the Applicant in the present matter is
that, as per the judgment of the Hon'ble Supreme Court in the case of
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Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. 1., in
cases where the offences are punishable with imprisonment up to seven
years, issuance of notice under Section 35(3) of the Bharatiya Nagarik
Suraksha Sanhita, 2023 ("BNSS") is the rule, and the exception is
contemplated under Section 35(6) of the BNSS. According to the
learned counsel appearing for the Applicant, in the present case, though
the offences registered against the present Applicant are punishable
with imprisonment up to seven years, the offence came to be registered
without issuing notice to the Applicant.
4. The perusal of the order passed by the learned Sessions Judge
also clarified that notice under Section 35(3) of the BNSS was not
issued to the present Applicant. However, the learned Sessions Judge in
absence of any exceptional circumstances pointed out by Investigating
Officer recorded that such notice under Section 35(3) of the BNSS can
be dispensed with.
5. In the Background of this submission, the learned APP was asked
to point out the reasons recorded by Investigation Officer for exempting
the notice under Section 35(3) of the BNSS, 2023 to Applicant.
However, learned APP could not point out from the record that the
Investigating Officer has pointed out any substantial reasons to carve
out the exception to issue notice to the Applicant. So also nothing is
1 (2026) SCC OnLine SC 162.
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placed on record by the Investigating Officer to substantiate his
submission.
6. The learned counsel Mr. R. C. Barge, who has moved the
application to assist the prosecution, has taken this Court through
various documents and pointed out that the present Applicant has
allegedly fabricated several official documents, including circulars,
public notices, final selection lists, recruitment schedules, and other
related documents. He further pointed out that the said documents
contain forged signatures in the name of the Assistant Secretary and
Secretary of the relevant department. Hence, according to him,
considering the documentary evidence on record, it is a fit case where
notice was not required to be issued to the Applicant.
7. In view of this submission, this Court has considered the
judgment of Hon'ble Supreme Court in the case of Satender Kumar
Antil (supra), wherein the issue regarding issuance of notice under
Section 35(3) of the BNSS was elaborately considered. The relevant
observations contained in paragraph Nos. 28 to 33, which are relevant
for the present matter, read as under:
"28. We have also clarified, on the earlier occasion, that
the procedure contained in Section 35(6) of the BNSS, 2023 has
been introduced on the touchstone of Article 21 of the
Constitution of India. These inbuilt safeguards are required to
be complied with by the police officer, in letter and spirit.
29. From a conspectus of the above, it is amply clear that even if
the conditions mentioned under Section 35(1)(b) of the BNSS,
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2023 are in existence, there can be no mandatory arrest, as a
police officer still may or may not decide to do so.
30. While making an arrest under Section 35(6) of the BNSS,
2023, after the stage of issuing a notice seeking presence under
Section 35 (3) of the BNSS, 2023, the circumstances and factors
that were in existence at the time of issuing the said notice shall
not be taken into consideration by a police officer while making
an arrest subsequently. In other words, for effecting an arrest
under Section 35(6) of the BNSS 2023, it must be based upon
materials and factors which were not available with the police
officer at the time of issuing a notice under Section 35(3) of the
BNSS, 2023. Therefore, the power of arrest under Section 35(6)
of the BNSS, 2023 is to be exercised rather sparingly, only under
circumstances as aforementioned.
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 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:
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
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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, but
an exception, and the police officer is expected to be
circumspect and slow in exercising the said power."
From the perusal of Judgment of Hon'ble Supreme Court, the
notice under Section 35(3) is mandatory.
8. The learned counsel for the Applicant further pointed out that, in
such cases, where compliance of Section 35 (3) is not done then by
issuing notice to the Applicant, an opportunity can be granted to submit
a reply and thereafter the Investigating Officer may proceed to arrest
the accused. For this purpose, the Applicant has relied upon the order
dated 2nd March 2022 passed by a Co-ordinate Bench in Criminal
Anticipatory Bail Application No. 288 of 2021 in the case of Kishore
kumar Shrinivas Shetty Vs. The State of Maharashtra & Anr .. In
paragraph No.5 of the said order of this Court observed as under :
"5. In such circumstances, the Criminal Application is disposed
of, at this stage. It will be open to the Investigating Officer to
issue a clear three working days notice to the Applicants under
Section 41-A of Cr.P.C. in the event she intends to effect the
arrest of the Applicants. If said notice is received by the
Applicants, liberty to the Applicants to renew the request for
anticipatory bail. The Criminal Application is disposed of, in the
aforesaid terms. The Interim Application is also disposed of."
9. In my opinion, the view taken by the Co-ordinate Bench can be
made applicable to the present matter by considering the admitted
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position that notice under Section 35(3) of the BNSS, 2023, was not
issued to the Applicant in the present case. In the circumstances, the
present application is disposed of at this stage by passing following
order :
::ORDER:
:
i. The Investigating Officer is permitted to issue a clear
three working days' notice to the Applicant under Section
35(3) of the BNSS, 2023, in the event he intends to effect
the arrest of the Applicant.
ii. It is also made clear that, if such notice is received by
the Applicant, liberty is granted to the Applicant to renew
the request for anticipatory bail.
iii. Accordingly, the present application stands disposed
of in above terms. No order as to costs.
[ PRAVIN S. PATIL, J.]
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