Judge ilanthiriyan/Power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023, pursuant to a notice issued under Section 35(3) of the BNSS, 2023 is not a matter of routine, but an exception, and the police officer is expected to be circumspect and slow in exercising the said power.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 29.07.2026
PRONOUNCED ON : 05.08.2026
CORAM
THE HON’BLE MR JUSTICE G.K. ILANTHIRAIYAN
Crl.O.P.(MD)No.15390 of 2026
G.V.Markandayan
S/o. Late G.Varatharajan,
Member of Legislative Assembly
(Vilathikulam Constituency)
No.2, West Street,
Ramachandrapuram,
Vilathikulam Taluk,
Toothukudi District. …Petitioner/Accused
vs.
The State Rep. By
The Inspector Of Police District Crime Branch, Thoothukudi.
(Crime No.16 of 2026) …Respondent/Complainant
PRAYER: Criminal Original Petition is filed under Section 528 of BNSS., to set aside the remand order in Crime No.16 of 2026 dated 20.07.2026 and consequently enlarge the petitioner on bail in Crime No.16 of 2026.
For Petitioner : Mr.P.Wilson, Senior Counsel for Mr.S.Kasirajan
For Respondent : Mr.R.John Sathyan,
State Public Prosecutor
Assisted by Mr.Arun Anbumani
Government Advocate (Crl. Side)
O R D E R
This Criminal Original Petition has been filed challenging the order of remand in Crime No.16 of 2026, dated 20.07.2026, thereby accepted the remand report of the petitioner and remanded him to judicial custody till 03.08.2026 and consequently, enlarge the petitioner on bail in Crime No.16 of 2026.
2. The petitioner is an accused in Crime No.16 of 2026 registered for the offences punishable under Sections 351(3), 352, 353(2) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as ‘BNS’ for brevity).
3. The case of the prosecution is that on 18.07.2026 a public meeting was conducted near Krishnan Temple, Kovilpatti, to express gratitude to the voters on behalf of the political party. During the said meeting, the petitioner, who is a sitting Member of Legislative Assembly of the Vilathikulam Constituency made highly derogatory, abusive and threatening remarks against the Hon’ble Chief Minister of Tamil Nadu. While speaking to the gathering, he allegedly used insulting language and issued criminal threats, including statements to the effect that the Hon’ble Chief Minister would be dealt with inside the Legislative Assembly and physically harmed by breaking his hip born if certain actions were taken. The said speech has been widely circulated on the internet and created public tranquility between the Members of different political parties and give rise to a likelihood of public unrest, disturbance of public peace and possible clashes between groups. In pursuant to the registration of FIR, the petitioner was arrested by the respondent/police and produced him for remand. The remand report was accepted by the learned Judicial Magistrate No.1, Thoothukudi and remanded the petitioner to judicial custody till 03.08.2026 by an order dated 20.07.2026, which is under challenge in this criminal original petition.
4. The learned Senior Counsel appearing for the petitioner submitted that the offences registered as against the petitioner are punishable with imprisonment which may extend to seven years and therefore, the mandate of provisions under Section 35 (3) of BNSS is squarely applicable. He further submitted that prior to his arrest, the petitioner was not issued with any notice under Section 35(3) of BNSS. Therefore, the arrest of the petitioner itself is illegal. He further submitted that the learned Judicial Magistrate remanded the petitioner without satisfying herself as to the necessity of arrest as mandated under Section 35 of BNSS and the guidelines laid down by the Hon’ble Supreme Court of India in the case of Arnesh Kumar vs. State of Bihar reported in (2014) 8 SCC 577. Further, the respondent/police failed to state any reasons for the arrest of the petitioner as required under Section 35(1) of BNSS. It is also a clear violation of the law laid down by the Hon’ble Supreme Court of India in the case of Satender
Kumar Antil vs. Central Bureau of Investigation reported in (2022) 10 SCC 51. He further submitted that the arrest of the petitioner was also not intimated to anybody. Even then, the Judicial Magistrate without considering the above fact, mechanically without applying her mind and remanded the petitioner to judicial custody. Therefore, it cannot be sustained and liable to be dismissed. In support of his contention, he relied upon several judgments of the Hon’ble Supreme Court of India.
5. The respondent herein filed counter affidavit and the learned State Public Prosecutor appearing for the respondent/police submitted that after registration of FIR and during the course of investigation, the speech of the petitioner widely circulated in various social media platforms. Therefore, in order to prevent the petitioner from committing in any further offences, from making any inducement of threat to the witnesses acquainted with the facts of the case and to prevent the petitioner from causing the evidence including electronic evidence from disappearing or tampering with the same by using his political influence, the arrest of the petitioner was very much required by the respondent/police. He further submitted that his threatening speech, would cause clashes among two groups, unrest and disturbance of public peace and considering the security of the Hon’ble Chief Minister, since the petitioner threatened the Hon’ble Chief Minister to attack him inside of the Legislative Assembly itself, the arrest of the petitioner become necessary. Therefore, he was arrested on 20.07.2026 at about 6.39 a.m. The arrest information was duly served to the brother-in-law of the petitioner, who was present at the time of his arrest and in the presence of one witness namely A.Devaraj S/o.Arumugam, who resides at Meenakshi Nagar, Vilathikulam.
6. Heard the learned counsel appearing on either side and perused the materials available on record.
7. On perusal of the counter affidavit filed by the respondent and alsoon the submissions made by the learned counsel appearing for either side, it is revealed that after his arrest, he was subjected for preliminary interrogation. During the preliminary interrogation, the petitioner was served with questionnaire for which he had answered in his own handwriting. The relevant questionnaires and answers of the petitioner are extracted hereunder:-
42 ve;j Kfhe;jpuj;jpd; mog;gilapy; jh’;fs; 18/07/2026k; njjp bghJTl;lj;jpy; ngrpa[s;sPu;fs;?
$dehaf khz;ig fhf;f
43 rl;lkd;w cWg;gpduhd jh’;fs; nfhtpy;gl;oapy; ele;j bghJTl;lj;jpy; khz;g[kpF jkpHf Kjyikr;ru; mtu;fis xUikapy; ngrp capUf;F mr;Rwj;jy; Vw;gLj;Jk; tpjkhf bfhiy tpul;ly; tpLj;J bghJ mikjpf;F Fe;jfk; Vw;gLj;Jk; tifapy; ngrpaJ rl;lg;go jtW vd;W bjupa[kh? fUj;J Rje;jpuj;jpd; mst[ nfhiy kPutpy;iy
44 mt;thW ngRtJ jtwhf ,Ue;jhy; rl;l eltof;if vLf;fg;gLk; vd;gJ j’;fSf;F bjupa[kh? Yes
45 Kfhe;jpuk; ,y;yhky; bghJTl;lj;jpy; ngrpaJ rk;ge;jkhf ,uz;L fl;rp cWg;gpdu;fspilna nkhjy; Vw;gl tha;g;g[ cs;sJ vd;W c’;fSf;F bjhpa[kh?
Kjy;th; fUup; ngrpaJ jtW
46 jh’;fs; bghJTl;lj;jpy; ngrpaJ ahupd; Jhz;Ljypd; ngupy; ngrpdPu;fs;?
khz;g[kpF Kjy;tUf;F mwpt[Wj;j
47 jh’;fs; bghJTl;lj;jpy; ngrp tiyjs’;fspy; gutpajhy; jkpHfj;jpd; rl;lk; XG’;F gpur;rid Vw;gLk; vd;gJ bjupa[kh?
jtWjyhf ngrtpy;iy

48 jh’;fs; bghJTl;lj;jpy; ngrpajhy; jkpHfj;jpy; cs;s murpay; fl;rpia nru;e;j egu;fSf;F ,ilna njitaw;w gpur;rid Vw;gLk; vd;gJ bjupa[kh?
Kjy;tuplk; jhd; nfl;fntz;Lk;
49 jh’;fs; bghJTl;lj;jpy; kpul;o ngrpaij Kd; cjhuzkhf vLj;Jf; bfhz;L kw;w fl;rpia nru;e;j egu;fSk; j’;fs; fl;rpia nru;e;j kw;w egu;fSk; ,Jnghy; ngrp rl;l xG’;F gpur;rid Vw;gl tha;g;g[s;sJ vd;gJ bjupa[kh?
,y;iy
50 jh’;fs; bghJ Tl;lj;jpy; itj;J jkpHf rl;lkd;wj;jpy; itj;J Kjyikr;riu rl;lkd;wj;ij Tl;odhy; cdf;F clk;g[ ,Uf;fhJ cd; vGk;ig cilj;JtpLntd; vd;W kpul;oajw;F m’;F VnjDk; Vw;ghL bra;J itj;Js;sPu;fshf? rl;l kd;w fjit K:Ltjw;F Kjy;tUf;F mjpfhuk; ,y;iy
51 rl;lkd;wj;jpy; Kjyikr;riu jhf;f ahu; jiyikapy;. Vw;ghL bra;Js;sPu;fs?; rl;lkd;w fjit K:l Kjy;tUf;F mjpfhuk; ,y;yhjnghJ ehd; ngrpajw;fhd tpdh vHtpy;iy
52 18/07/2026k; njjp nfhtpy;gl;o bghJTl;lj;jpy; ngrp khz;g[kpF jkpHf Kjy;tiu cd; vGk;ig cilj;Jtpl;Ljhd; btspna mDg;g[nthk; vd;W gz;ikapy; ngrpa[s;sPu;fs;/ jh’;fs; nghf ntW vj;jid ngiu Vw;ghL bra;Js;sPu;fs;/ mtu;fspd; tptuk;?
v’;fs; ,af;f jiytiu mtJhuhf ngrpa Kjy;tiu tpl Fiwthf jhd; ngrpapUf;fpnwd;/
58 jkpHf;fj;jpd; cau;ghJfhg;g[s;s rl;lkd;wtshfj;jpy; cs;ns itj;J Kjyikr;riu bfhiytpul;ly; tpLj;j jh’;fs; bghJ ,lj;jpy; Kjyikr;riu jhf;fkhl;Ou;fs; vd;gJ vd;d epr;rak;? ngr;Rupikia ,e;j muR jLf;fpwJ
59 jkpHfj;jpd; Kjyikr;rupd; capUf;nf bfhiykpul;ly; tpLf;Fk; tifapy; bghJTl;lj;jpy; ngrpa jh’;fs; bghJkf;fspd; capUf;Fk; ghJfhg;gpy;yhj R{H;epiyia cUthf;fpa[s;sPu;fs; vd;gJ bjupa[kh?
50 Mz;Lfhy taJ 25 taJ bghJthH;f;if ,Jtiu ,y;iy/ fU:upy; Kjy;th; Tl;lj;jpy; 41 capu; nghdJf;F gjpy; ntz;Lk;/
60 mt;thW Vw;gl;lhy; mJ bghJ mikjpf;F g’;fKk; rl;l xG’;F gpur;rida[k; Vw;gl TLk; vd;gJ bjupa[kh? “hakhd fUj;J
62 ,Wjpahf j’;fs; kPJ Rkj;jg;gl;Ls;s Fw;wr;rhl;ow;F j’;fspd; epiyg;ghL vd;d? bghJ ,l’;fspy; Tl;l’;fspy; $dehaf mikg;gpy; Kjy;th; rl;lj;jpw;F cl;gl;L ngrntz;Lk; mg;go ngrpdhy; rupahd gjpy; fpilf;Fk;
8. The above answers given by the petitioner clearly shows that he had knowledge for what reason he was arrested. That apart, the petitioner was duly served with grounds of arrest. The grounds and reasons for his arrest are as follows:-
“,t;tHf;fpy; g[fhu;jhuu; ghyRg;gpukzpad;. jkpHf btw;wp fHfj;jpy; Jhj;Jf;Fo tlf;F khtl;lk;. nfhtpy;gl;o khtl;l brayhsuhf ,Ue;J tUfpwhu;/ fle;j 18/07/2026 k; njjp Rkhu; 21/00 kzpastpy; nfhtpy;gl;o fpUc&;zd; nfhtpy; mUfpy; jpKf rhu;gpy; thf;fhsu;fSf;F ed;wp bjhptpf;Fk; bghJf;Tl;lk; eilbgw;Ws;sJ/ nkw;go bghJTl;lj;jpy; fye;J bfhz;L ngrpa tpshj;jpFsk; rl;lkd;w cWg;gpdu; jpU/khu;f;fz;nlad; mtu;fs; khz;g[kpF jkpHf Kjyikr;ru; jpU/n$hrg; tp$a; mtu;fis khd’;bfl;l jkpH;ehl;oDila Kjyikr;ru;. cd;id“ rl;lkd;wj;Jf;Fs;ns itj;J ghu;j;Jf; bfhs;fpnwhk;lh. eh’;f vd;d nfhkhsp gaYfsh epidr;Rfpl;L ,Uf;f? rl;lkd;wj;ij g{l;Lthdhk;/ g{l;odhy; cdf;F clk;g[ ,Uf;fhJ/ cd; vYk;ig cilj;J tpl;Ljhd; btspna mDg;g[nthk; nghlh btsf;bfz;z vd;W khz;g[kpF jkpHF Kjy;tUf;F bfhiykpul;ly;” tpLj;Js;shu;/ nkw;go rl;lkd;w cWg;gpdu; khu;f;fz;nladpd; ngr;R rK:f tiyjs’;fspYk; gutpajhy; jpKf kw;Wk; jkpHf btw;wp fHf cWg;gpdu;fSf;fpilna ,ilna nkhjy; Vw;gl;L. fyfk; cz;lhfp. bghJ mikjp Fiyit Vw;gLj;Jk; tpjk; Fw;wk; g[upe;Jshu; vd;gJ rhl;rpfspd; tprhuizapy; ,Ue;Jk; rK:f tiyjis tPonah K:yk; cz;ik vd;W bjupa tUfpwJ/
2/,t;tHf;fpd; rk;gtkhdJ gpof;ff;Toa Fw;wkhf ,Ug;gjhy;. jh’;fs; ifJ bra;ag;glhtpl;lhy; tHf;fpd; g[yd;tprhuizf;F njitahd midj;J cz;ikfisa[k; jh’;fs; btspg;gLj;jkhl;Ou;fs; vd;gjw;fhf
3/jh’;fs; nkYk; ,Jnghd;w Fw;wbraypy;