The order decides only the arrest-protection prayer. It does not quash the FIR, does not decide whether any offence is made out, and does not restrain the investigation. The petitioners must appear before the investigating officer whenever required and cooperate until the investigation is complete, failing which the protection can be withdrawn on an application by the prosecution or the complainant.
- Case
- Smt. Kadambari and Another v. State of Uttar Pradesh and Another
- Court
- High Court of Judicature at Allahabad
- Decision
- Citation
- 2026:AHC-LKO:81182-DB
- Bench
- Abdul Moin; Pramod Kumar Srivastava
- Case numbers
- Criminal Misc. Writ Petition No. 10836 of 2026
- Outcome
- Final order disposing of Criminal Misc. Writ Petition No. 10836 of 2026 under Section 35(3) of the BNSS, 2023, extending the Arnesh Kumar and Satender Kumar Antil arrest safeguards to the petitioners. The FIR and the investigation remain alive.
Protection from arrest, not quashing of the FIR
The Lucknow Bench of the Allahabad High Court has disposed of a writ petition by Smt. Kadambari and another by extending to them the arrest safeguards laid down by the Supreme Court in Arnesh Kumar and Satender Kumar Antil, under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The petitioners had expressly declined to challenge the first information report against them and asked only for the benefit of those judgments.
The order, passed on 12 November 2026 by Justices Abdul Moin and Pramod Kumar Srivastava, records that there is no dispute that the offences in the FIR carry a maximum punishment of less than seven years' imprisonment. On that footing, the court directed that the petitioners appear before the investigating officer whenever required and cooperate with the investigation until it is complete, failing which the protection may be withdrawn on an application by the prosecution or the complainant.
The case before the court
The petition, Criminal Misc. Writ Petition No. 10836 of 2026, concerned FIR Case Crime No. 170 of 2026, registered at Police Station Qaiserbagh, Lucknow, under Sections 191(2), 131, 324(4), 305, 333, 351(3) and 238(c) of the Bharatiya Nyaya Sanhita, 2023 (BNS). The order records no facts about the conduct alleged in the FIR beyond the case-crime number and the sections invoked.
After arguing at some length, counsel for the petitioners stated that they did not intend to raise a challenge to the FIR. They prayed instead that the benefit of the Supreme Court's judgments in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 and Satender Kumar Antil v. CBI (2022) 10 SCC 51 be given to them, considering that the offences in the FIR carry a maximum punishment of less than seven years' imprisonment.
The rule the court applied
The order rests on a recent restatement of the arrest safeguards by the Supreme Court in Satender Kumar Antil v. CBI, 2026 INSC 115. As recorded in the order, the Supreme Court has held that for effecting an arrest for an offence punishable with imprisonment up to seven 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), must be in existence. Further, even where the circumstances warranting arrest are available in terms of the conditions in Section 35(1)(b), the arrest shall not be undertaken unless it is absolutely warranted.
The order also records the earlier position: in Arnesh Kumar and Satender Kumar Antil, the Supreme Court categorically held that investigating agencies and their officers are duty bound to comply with the mandate of Sections 41 and 41-A of the Code of Criminal Procedure, 1973, which now stands as Section 35(3) of the BNSS, 2023.
What the court ordered
Applying that law, the court disposed of the petition in view of Section 35(3) of the BNSS, 2023, and the law laid down in Arnesh Kumar and Satender Kumar Antil. The disposal is conditional in one respect only: the petitioners must appear before the investigating officer of the police station concerned whenever they are required to do so, and must continue to cooperate with the investigation until its completion.
If they fail to cooperate, the protection of the order may be withdrawn on an application moved by the prosecution or the complainant. The order contains no further direction, fixes no next date, and says nothing about the merits of the FIR.
BANTHRY ANALYSISWhy this order matters
The order is a routine application of settled law, and its value lies in showing how the transition from the Code of Criminal Procedure to the BNSS works in practice. The safeguards that Arnesh Kumar built around Sections 41 and 41-A of the old Code now operate through Section 35 of the BNSS, and the 2026 restatement in Satender Kumar Antil states the test in BNSS terms: for offences punishable up to seven years, an arrest needs both the Section 35(1)(b)(i) mandate and one of the Section 35(1)(b)(ii) conditions, and even then the arrest must be absolutely warranted.
For a person named in an FIR for sub-seven-year offences, the practical consequence is a two-part protection: the police must satisfy the statutory preconditions before arresting, and the courts will enforce that discipline on a writ petition even where the FIR itself is not challenged. The protection is not a clean chit — it is tied to cooperation, and it ends if cooperation stops.
BANTHRY ANALYSISFor law students
Note the distinction the petitioners drew: they did not ask the court to quash the FIR, and the court did not quash it. A writ petition can succeed on a narrower prayer — here, the application of arrest safeguards — while the investigation proceeds. That is the difference between challenging the existence of a case and challenging the manner of proceeding against the accused.
Second, track the statutory mapping the order relies on: Sections 41 and 41-A of the CrPC correspond to Section 35 of the BNSS, and the court treats the Arnesh Kumar line of authority as continuing to govern under the new Code. When you read a post-BNSS order, always check which CrPC provision the court is translating, because the old case law remains the working authority.
Third, notice what the order does not do: it records no facts about the alleged conduct, makes no finding on whether any offence is made out, and imposes no timeline on the investigation. The only operative consequences are the arrest safeguard and the cooperation condition.
READING PROMPTSQuestions for a closer reading
- The petitioners did not ask the court to quash the FIR. What did they ask for, and what did the court grant?
- Under the test recorded in the order, what two things must exist before the police can arrest a person for an offence punishable with up to seven years' imprisonment, and what further limit applies even then?
- What must the petitioners do to keep the protection of this order, and what happens if they do not?
