Between the grant and the refusal of anticipatory bail lies a third outcome that has become increasingly common under the new criminal codes: the court declines pre-arrest bail but insulates the accused from surprise arrest through statutory notice requirements. On 24 September 2026, in Harendra v. State of Rajasthan, S.B. Criminal Miscellaneous Bail Application No. 10760/2026, Justice Sanjeet Purohit of the Rajasthan High Court at Jodhpur charted exactly this middle path — refusing anticipatory bail to two young men named in an FIR under assault and hurt provisions of the BNS, while mandating that the investigating officer issue prior notice before arresting them.
The application
The two petitioners — residents of a village in Didwana-Kuchaman district, aged twenty-eight and twenty — apprehended arrest in FIR No. 47/2026 of Police Station Maroth, registered under Sections 115(2), 126(2), 110 and 3(5) of the Bharatiya Nyaya Sanhita, 2023: voluntarily causing hurt, wrongful restraint, attempt to commit culpable homicide and common intention. They moved the High Court under Section 482 of the BNSS for anticipatory bail.
The order: refusal with a shield
Justice Sanjeet Purohit declined to grant pre-arrest bail on the merits of the allegations. But the refusal did not leave the petitioners exposed to immediate custody. Invoking Section 35(3) of the BNSS, 2023 and the Supreme Court’s decision in Arnesh Kumar v. State of Bihar, the court directed that the investigating officer shall issue prior notice before effecting any arrest — preserving the statutory discipline that arrest in moderate-gravity offences must be a considered act, not a reflex.
Full anticipatory bail under Section 482 BNSS: immunity from arrest with release on bonds in the event of detention.
No pre-arrest bail — but a binding direction that the IO issue prior notice under Section 35(3) BNSS before arrest, per Arnesh Kumar.
Why this outcome matters
The notice-before-arrest direction has quietly become one of the most consequential tools in criminal practice under the BNSS. Its logic is straightforward: for offences punishable up to seven years, Parliament has said that arrest requires recorded justification, and appearance on notice is the default mode of securing an accused’s participation in investigation. When a court refuses anticipatory bail but reiterates the notice mandate, three practical consequences follow:
No midnight knock. The accused receives notice, appears, and participates in the investigation from liberty. Arrest requires either non-compliance with the notice or reasons recorded under the statutory criteria.
A window for regular bail. If the investigation hardens and arrest looms, the accused has time to prepare a regular bail application before the jurisdictional court rather than scrambling after detention.
Preserved cooperation record. Every appearance pursuant to notice builds the record of cooperation that will anchor any later bail plea — a factor Delhi courts, in particular, weigh heavily.
The direction is not a licence to ignore the notice. Non-appearance converts the shield into a sword: it justifies arrest, colours every subsequent bail application, and can found proceedings for proclamation. An accused protected by a notice direction should treat each notice as a court date.
The Delhi angle
Delhi High Court and the Sessions Courts of Delhi routinely pass analogous orders — declining anticipatory bail while binding the police to Section 35(3) BNSS notice, or disposing of applications with liberty to appear on notice. For accused persons named in FIRs arising out of neighbourhood altercations, matrimonial discord or business disputes, the realistic objective in many cases is not blanket immunity but structured liberty: notice, appearance, cooperation, and bail at the appropriate stage. Orders like Harendra show the courts institutionalising precisely that structure.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
What is Section 35(3) of the BNSS?
It carries forward Section 41A of the CrPC: where arrest is not required under the statutory criteria for offences punishable up to seven years, the police officer must issue a notice of appearance to the accused, and arrest follows only on non-compliance or recorded reasons. It is the statutory backbone of the Arnesh Kumar safeguards.
If anticipatory bail is refused, is arrest automatic?
No. Refusal of anticipatory bail restores the ordinary statutory position — and for moderate offences that position itself restricts arrest. A direction for prior notice, as in this case, means the accused will have the opportunity to appear, cooperate and, if necessary, seek regular bail before any custody materialises.
Which offences attract the notice regime?
Broadly, offences punishable with imprisonment up to seven years. For graver offences the police retain wider arrest powers, and the notice route recedes. The FIR in this case involved hurt, criminal intimidation and allied BNS provisions of the moderate category.
Does a notice direction prevent the accused from seeking bail again?
No. The accused can apply for regular bail upon appearance, and in changed circumstances a fresh anticipatory bail application may lie. The notice direction is protection during investigation, not an adjudication of guilt or a bar on remedies.