Police Serve Section 35(3) BNSS Notice Asking 69-Year-Old Accused to Appear at 11 AM but Arrest Him at 5:19 AM; Bombay High Court Orders Immediate Release on Bail
Accused Arrested Hours Before Time Fixed in Section 35(3) BNSS Notice; Bombay High Court Says Purpose and Ethos of Notice Were Completely Lost, Grants Immediate Bail
Facts
Devaram Chelaji @ Chelaram Mandora, aged 69 years, was arraigned as an accused for offences under Sections 318(4) and 3(5) of the Bharatiya Nyaya Sanhita, 2023. The transaction in question was stated to be of the year 2021, while the FIR had been registered recently.
A notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was served on the Petitioner at 11:00 a.m. on 29 September 2026. The notice required him to present himself at the police station for investigation on 30 September 2026 at 11:00 a.m. along with all documents.
Despite fixing 11:00 a.m. on 30 September 2026 for compliance, the Petitioner was arrested at 05:19 hours that very morning. The time of arrest was evident from the grounds of arrest conveyed under Section 47 BNSS.
The Petitioner had approached the Bombay High Court primarily seeking quashing of the FIR, but the writ petition also contained prayer clause (h) seeking his immediate release from custody.
Issues
• Whether the police could arrest the Petitioner at 5:19 a.m. on 30 September 2026 when their own Section 35(3) BNSS notice required him to appear only at 11:00 a.m. that day.
• Whether such an arrest defeated the statutory purpose of issuing a notice under Section 35(3) BNSS.
• Whether, pending consideration of the quashing petition, the High Court should exercise its jurisdiction to direct the Petitioner’s immediate release on bail.
Petitioner’s Arguments
• The Petitioner relied on the chronology apparent from the prosecution’s own documents: notice served at 11:00 a.m. on 29 September 2026, appearance required at 11:00 a.m. on 30 September 2026, but arrest effected at 5:19 a.m. on 30 September 2026.
• The arrest took place before the time fixed for compliance with the notice, thereby depriving the Petitioner of any meaningful opportunity to obey it.
• The Petitioner relied on the Bombay High Court’s decision in Omkar Balkrushna Gade v. State of Maharashtra and sought immediate release under prayer clause (h), apart from the substantive quashing reliefs.
Respondent’s Arguments
• The State was represented by the learned APP. At this interim stage, the Court directed the prosecution to file an appropriate Affidavit-in-Reply dealing with the quashing petition and the other reliefs within two weeks.
• The order does not record a detailed final response by the prosecution on the merits of the quashing challenge, and the Court expressly confined its observations to the question of bail.
Analysis of the Law
Section 35(3) BNSS contemplates a notice requiring a person to appear before the police for investigation. The very utility of such a notice depends upon giving the recipient a real opportunity to appear at the specified time before coercive arrest is resorted to.
On the prosecution’s own record, the Petitioner was required to appear at 11:00 a.m. but was arrested almost six hours earlier. The Court therefore observed that the ‘purpose and ethos’ of issuing the Section 35(3) notice itself was completely lost.
The Court treated the chronology as significant at the prima facie stage because the contradiction was established from prosecution material itself, including the Section 35(3) notice and the written grounds of arrest under Section 47 BNSS.
The writ petition remained a quashing petition; the Court did not finally adjudicate the validity of the FIR or the merits of the prosecution. It instead granted immediate bail/release as interim relief while directing the State to respond to the substantive challenge.
Precedent Analysis
Omkar Balkrushna Gade v. State of Maharashtra, Bail Application No. 2899 of 2026, decided on 10 September 2026 — The Bombay High Court expressly held that the Petitioner’s case was clearly covered by this decision. The present order applies that principle to the situation where arrest was effected before the time fixed for compliance with a Section 35(3) BNSS notice.
Court’s Reasoning
• The Court relied on the prosecution’s own documents rather than disputed defence material. The Section 35(3) notice fixed 11:00 a.m. on 30 September 2026 for appearance, whereas the grounds of arrest showed arrest at 5:19 a.m.
• Arresting the Petitioner before the time at which he was required to report deprived the notice of practical meaning and defeated its purpose.
• The Petitioner was 69 years old, the underlying transaction was of 2021 and the FIR had been registered recently; these circumstances were also noted in the order.
• Although the writ petition sought quashing of the FIR, prayer clause (h) specifically sought immediate release. In light of the prima facie illegality apparent from the prosecution material, the Court considered it appropriate to grant that relief by releasing the Petitioner on bail.
• The Court carefully clarified that all observations were limited to bail and were not findings on the merits of the case.
Conclusion
The Bombay High Court directed the immediate release of Devaram Chelaji @ Chelaram Mandora in connection with C.R. No. 524 of 2026. He was permitted to furnish provisional cash bail of ₹10,000 and undertake to provide one or two sureties in the like amount within four weeks. He was directed to report to the Investigating Officer at Mira Road Police Station on the first Sunday of every month between 10:00 a.m. and 12:00 p.m. until commencement of trial, attend the Trial Court thereafter, cooperate with proceedings, not leave India without prior permission, not influence witnesses or tamper with evidence, and keep his address and mobile details updated. Breach would entail cancellation of bail. The prosecution was directed to file its Affidavit-in-Reply within two weeks, and the writ petition was stood over to 28 October 2026.
Case Details
Case: Devaram Chelaji @ Chelaram Mandora v. State of Maharashtra & Ors.
Court: High Court of Judicature at Bombay, Criminal Appellate Jurisdiction
Case Number: Criminal Writ Petition (St.) No. 20251 of 2026; CNR No. HCBM010494282026
Judge: Justice Milind N. Jadhav
Date: 7 October 2026
Offences: Sections 318(4) and 3(5), Bharatiya Nyaya Sanhita, 2023Result: Immediate release on bail ordered; prosecution directed to file Affidavit-in-Reply within two weeks; quashing petition kept pending and stood over to 28 October 2026.
