Saket Court Complex, New Delhi: While examining compliance with constitutional and statutory safeguards at the time of arrest, particularly the requirement to communicate the grounds and reasons for arrest and the applicability of Section 35(3), Nagarik Suraksha Sanhita, 2023 (BNSS) in offences punishable with less than seven years, the Additional Sessions Judge observed that the procedure of arrest is not a mere formality. The Court found the investigating officer’s (IO) conduct and contradictions with the case diary alarming and unacceptable and granted bail to the accused. The Court further clarified that in offences carrying a punishment of under seven years, Section 35(3) BNSS notice is mandatory and that the reasons must be case specific and conveyed in a language understood by the accused.
Background
The accused was a karate instructor for the last 15 years. It was alleged that on 17 January 2026, he took his student (victim) to the first floor of the institute and sexually assaulted her. He was charged under Sections 74, 75 and 76, Nyaya Sanhita, 2023 (BNS) and Sections 10 and 12, Protection of Children from Sexual Offences Act, 2012 (POCSO Act), all of which were punishable with less than 7 years.
The accused’s counsel argued procedural lapses at arrest alleging that the grounds and reasons of arrest were not provided immediately on the arrest, but only when the accused was taken to judicial custody. It was submitted that the grounds were not provided in the language understood and the language of grounds showed non-application of mind by the IO with a mechanical copy of Section 35(1)(b) BNSS. It was further contended that the notice required under Section 35(3) BNSS was not issued. The allegations were denied and it was argued that there had been no prior complaint by anyone and not even the victim herself had ever complained against his behaviour despite her four years of training. It was stated that the accused had been in judicial custody since 19 January 2026 and the investigation qua him was already complete.
The State submitted there was no procedural lapse and pointed out that during the first judicial custody remand the Court had observed that grounds and reasons had been informed. The accused had private counsel at his first production, and no such objection was taken. It was contended that there was no requirement of Section 35(3) BNSS notice as arrest was essential; and the offence involved was sexual molestation. The victim stated she had already informed the IO whatever had happened and did not wish to say anything else.
Analysis and Decision
The Court noted that a clarification was sought from the IO about the immediate requirement of arrest, and the IO submitted that there was another student who had witnessed the incident and the accused was in constant touch with that student. When asked whether this was recorded in the case diary, the IO told that no such entry was made. When asked to show evidence, the IO said that she had not collected any such evidence. When further asked whether the other student filed any complaint or gave such information to her, the IO stated that only a part statement of the other student was recorded and the further examination was pending.
The Court observed that the way the IO kept on making the submissions in the Court contrary to the case diary was alarming and unacceptable. The Court noted that the case diary did not mention anything about the accused being in contact with the other witness prior to arrest, rather it reflected that the examination of the other student was already complete. The Court highlighted that if it was within the IO’s knowledge that the accused was trying to influence the witness and it was not brought in the case diary, it was a very serious lapse, but if no such incident took place and such submissions were made just to frustrate the bail application, it was more serious conduct.
The Court opined the procedure which the IO needs to follow at the time of arrest is not a mere formality. Its purpose is to inform the accused of the grounds of arrest so that he knows the allegations and can prepare his defence, and to ensure proper legal representation to defend personal liberty.
The Court relied on Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799, wherein it was held that informing the grounds of arrest is a mandatory constitutional requirement, that non-communication of the grounds, as soon as may be, vitiates the arrest and custody, and that when an arrestee pleads non-communication of the grounds, the burden to prove the compliance of Article 22(1) of the Constitution is on the police. The Court observed that for accepting police’s case regarding requirements of Article 22(1) of the Constitution based on case diary entries, there must be a contemporaneous record stating the grounds of arrest.
The Court observed that it is essential for the IO to communicate the grounds and reason of arrest in the language as understood by the accused and to mention the time of such communication, and that mere obtaining the accused’s signature on the paper mentioning the grounds and reason of the arrest is not sufficed. The Court further observed that in all the cases punishable with imprisonment of less than 7 years, the notice under Section 35(3) BNSS is the rule and the POCSO Act is not an exception to it. The Court further emphasised that the reason of the arrest must not be a mechanical “copy and paste” of the provision of Section 35(1) BNSS and must show the application of mind by the IO and the same must be case specific.
Consequently, the Court released the accused on bail subject to him furnishing bail bond and surety bond with conditions not to contact or try to influence the victim or any witness, not to leave India without the Court’s permission and to intimate any change of address or mobile number to the IO.
[State (NCT of Delhi) v. X, Bail Matters 345 of 2026, decided on 13-2-2026]
Advocates who appeared in this case :
For the Accused: Kartik Venu, R. Jude Rohit and Arjan Ajai Singh Chonkar, Advocates.
For the State: Rajesh Kumar, Add. PP.