S. 35 BNSS | Arrest Is An 'Individualized Act'; Distinct Reasons Backed By Material Mandatory For Each Co-Accused : Bombay HC

In a significant observation, the Bombay High Court has ruled that arrest is an 'individualized' act and therefore, the investigating agencies cannot justify the arrest of multiple suspects using 'collective' or 'group-based' reasons. Interpreting the mandate of Section 35 BNSS, the Court held that reasons for arrest cannot be a "mechanical reproduction" of statutory clauses; instead, they must be specific 'conclusions' reached by the Police Officer based on the facts of each case.A bench of Justice Bharati Dangre and Justice Shyam C Chandak thus declared the arrest of a corporate executive in a Deepfake-Advertisement FIR as ILLEGAL as it held that arrest can't be based on the mere fact that multiple persons are named together in the same FIR. In other words, the Court emphasized that for every single arrest, the police must record a 'distinct' reason specific to that individual's role, even if the offence was committed jointly. Stressing that law requires reasons linked to the individual and not to the group, the HC remarked thus: "The Investigating Officer must show why arrest is necessary for each accused individually, considering his flight risk, potential of his tampering with evidence and of influencing witnesses and the need for his custodial interrogation. Definitely all these parameters cannot be common to each of the accused and they must be individualistic".Case in brief The bench was dealing with a Writ Petition filed by Chandrashekhar Bhimsen Naik, a Senior Vice President at a Bengaluru-based digital technology firm, in connection with an FIR over a high-profile fraud involving "deepfake" videos. For context, Prakash Gaba, a famous SEBI-registered Research Analyst, lodged the FIR in this case alleging that certain fraudsters used his AI generate fake videos (deepfake) of an advertisement about investment in the stock market, made it viral and thus, lured investors into a stock market scam. While Naik was not named in the initial FIR [lodged under Section 318(4), 319(2), 336(2), 356(2) BNS and Section 66 C and 66 D IT Act], he was arrested on October 16, 2025, after hours of questioning and arrest of other employees of his company. Crucially, the police did not serve him a prior notice under Section 35(3) of the BNSS (mandating appearance before police instead of arrest for offenses punishable with imprisonment of less than 7 years) despite him cooperating with the search at his residence. The Police justified his arrest by submitting a remand checklist to the Magistrate under Section 35 of the BNSS as they cited reasons such as the need to "collect computer evidence," "prevent destruction of technical evidence" and the "magnitude of offence at international level". Arguments Challenging his arrest, he moved the HC wherein his counsel [Advocate Kushal Mor] challenged the manner in which the police recorded the "Reasons for Arrest". It was argued that u/s Section 35 BNSS (pari materia with Section 41 of the CrPC), police must record specific reasons in writing before arresting a person for offences punishable with less than seven years imprisonment. Counsel argued that the IO merely used a 'template' of generic reasons, mechanically reproducing the statutory language of Section 35(1)(b)(ii) BNSS without applying it to the specific facts of the case. It was urged that the reasons must be fact-based conclusions recorded by the Officer, rather than a ritualistic reproduction of legal provisions. It was also pointed out that the reasons for arresting the petitioner were identical to those used for the other co-accused arrested earlier, despite Naik having different roles and circumstances, though involved in the same case as other accused. The petitioner's counsel also challenged the remand order by contending that the Magistrate failed to exercise his duty while authorizing detention under Section 167 CrPC as he did not satisfy himself if the arrest effected by the Police Officer was as per Section 41 CrPC/35 BNSS. In essence, the petitioner's challenge was aimed at non-existence of the 'Reasons of Arrest' and the satisfaction being reached by the investigating officer justifying the said arrest and the examination of these reasons by Magistrate. The state, on the other hand, justified the arrest by claiming that offence was serious and the Petitioner had deleted certain WhatsApp messages which raised a valid apprehension of evidence tampering. It was also submitted that the investigation revealed that Naik had a direct role in instructing "BM id Ads" for a "Chinese customer" and ignored "yellow flags" issued by Meta regarding the fake videos. High Court's observations Justice Bharati Dangre, authoring the judgment for the bench, rejected the police's approach of treating multiple accused as a single unit. The Court held that while Section 35(1)(b)(ii) BNSS lists statutory conditions for...

S. 35 BNSS | Arrest Is An 'Individualized Act'; Distinct Reasons Backed By Material Mandatory For Each Co-Accused : Bombay HC

Sparsh Upadhyay

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