1. This Criminal Petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) has been filed on behalf of the Petitioners/Accused Nos.1, 2, 5 & 6 to quash the proceedings against the Petitioners/Accused Nos.1, 2, 5 & 6 in Crime No.76 of 2026 of Kothuru Police Station, Srikakulam District, registered for the offences punishable under Sections 189(2), 132, 223, 285, 126(2), 79 read with 190 read with 49 of the Bharatiya Nyaya Sanhitha, 2023 (for brevity ‘the BNS’).

2. Heard the learned Counsel for the Petitioners and the learned Assistant Public Prosecutor. Perused the record.

3. Sri Vivekananda Virupaksha, learned Counsel for the Petitioners submits that even though the Criminal Petition is filed for quashment of the proceedings in Crime No.76 of 2026 of Kothuru Police Station, Srikakulam District, he is limiting his prayer to grant a direction to the police to comply with Section 35(3) of ‘the BNSS’ as the alleged offences are punishable below seven years.

4. On perusal of the record, it is seen that the alleged offences levelled against the Petitioners/Accused Nos.1, 2, 5 & 6 are punishable with imprisonment for less than seven (07) years. Therefore, the Petitioners are entitled to the benefit under Section 35(3) of ‘the BNSS’/41-A of ‘the Cr.P.C.,’ in view of the judgments of the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar ((2014) 8 SCC 273) and Md.Asfak Alam v. the State of Jharkhand ((2023) 8 SCC 632).

5. Indeed, the Hon’ble Supreme Court, in Practical Solutions Inc. v. State of Telangana, Criminal Appeal No.353 of 2026 (arising out of SLP (Criminal) Diary No.953 of 2026), on dated 19.01.2026 has held as follows:

                  “We also take notice of the fact that the petition before the High Court was to quash the FIR. In a petition where quashing of the FIR is prayed for, the High Court should not have passed an order directing the Investigating Officer to comply with Section 41-A of the Code of Criminal Procedure, 1973, because it indirectly amounts to granting a relief which the High Court could have considered only if a prima facie case for quashing of the FIR is made out.”

6. Further, the Hon’ble Supreme Court, in Satender Kumar Antil v. Central Bureau of Investigation (Special Leave Petition (Crl.) No.5191 of 2021, dated 15.01.2026), wherein at paragraph No.33, it is held as under:

                  “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 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.”

7. Furthermore, in this regard, it is apposite to mention the Hon’ble Apex Court in Arnesh Kumar supra, wherein detailed guidelines were issued at Para Nos.11 and 12, for arresting a person, which are being reproduced herein below:-

                  “11. Our endeavor in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

                  a).All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.’);

                  b) All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

                  c) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

                  d) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;

                  e) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

                  f) Notice of appearance in terms of Section 41-A of Cr.P.C be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

                  g) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, he shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

                  h) Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.”

8. The similar view is also reiterated by the Hon'ble Apex Court in Md.Asfak Alam supra, which also reiterated the guidelines laid down in the case of Arnesh Kumar.

9. In the light of the law laid down in the case of Satender Kumar Antil, Arnesh Kumar and Md. Asfak Alam, the Investigating Officer is under legal obligation to proceed in accordance with law, but he shall follow the procedure prescribed under Sections 41 and 41(A) of ‘the Cr.P.C.,’ (now Sections 35 and 35(3) of ‘the B.N.S.S.,’ 2023). The Petitioners/Accused Nos.1, 2, 5 & 6 are obliged to render their fullest cooperation in the ongoing investigation.

10. In the result, the Criminal Petition is disposed of directing the Investigating Officer to comply with Section 35(3) of ‘the BNSS’/41-A of ‘the Cr.P.C.,’ and to strictly follow the directions issued in the cases of Satender Kumar Antil, Arnesh Kumar and MD. Asfak Alam supra. If it is noticed in the course of investigation that the Petitioners/Accused Nos.1, 2, 5 & 6 have committed any offence which is punishable with imprisonment beyond seven years, the Investigating Officer is at liberty to proceed in accordance with law.

As a sequel, Miscellaneous petitions, if any pending, shall stand closed.