The Supreme Court of India has authoritatively ruled that the issuance of a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is the rule for offences punishable with imprisonment up to seven years, while arrest remains an exception to be exercised only under specific circumstances.
The Bench, comprising Justice M.M. Sundresh and Justice Nongmeikapam Kotiswar Singh, clarified that the power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023 must be interpreted as a “strict objective necessity, and not a subjective convenience for the police officer.”
The Legal Issue
The seminal issue before the Court was whether notices under Section 35(3) of the BNSS are mandatorily required in all cases regarding offences punishable with imprisonment up to 7 years. Consequently, the Court examined whether an arrest by a police officer is legally justified in the absence of circumstances outlined under Sections 35(1)(b)(i) and 35(1)(b)(ii) of the BNSS.
Submissions by the Parties
Learned Amicus Curiae, Mr. Sidharth Luthra, submitted that in the absence of specific circumstances under Sections 35(1)(b)(i) and 35(1)(b)(ii), an arrest is not legally justified. He relied on the judgment in Arnesh Kumar v. State of Bihar & Anr.
Mr. Luthra drew the Court’s attention to a recent Bombay High Court judgment in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025). He argued that the judgment presented seemingly conflicting positions: necessitating a notice under Section 35(3) while appearing to permit arrest if “Reasons of Arrest” are recorded. The Amicus urged the Supreme Court to settle the position regarding the interplay between the mandate of notice and the discretion to arrest.
On behalf of the Respondents, Learned Additional Solicitor General (ASG) Ms. Aishwarya Bhati submitted that the issue was already settled by the Supreme Court in Arnesh Kumar and Satender Kumar Antil v. Central Bureau of Investigation (2022). She argued that Section 35 of the BNSS is pari materia to Section 41-A of the Code of Criminal Procedure, 1973.
The ASG contended that while Section 35(3) mandates the issuance of a notice, the legislative intent of Section 35(1)(b) empowers a police officer to deviate from this mandate only when valid reasons for arrest are recorded.
The Court’s Analysis
The Supreme Court examined the nature of investigation and arrest, citing State of Uttar Pradesh v. Bhagwant Kishore Joshi. The Bench observed that Section 35(1) of the BNSS uses the word “may,” making the power of arrest discretionary and optional.
The Court held that Section 35(1)(b)(i) and Section 35(1)(b)(ii) must be read together. Compliance with Section 35(1)(b)(i), which requires the police officer to have a “reason to believe” based on complaint or information, is a sine qua non in all cases of arrest. Additionally, at least one condition under Section 35(1)(b)(ii) regarding the necessity of arrest must be satisfied.
Referring to Joginder Kumar v. State of UP, the Court reiterated that the existence of the power to arrest is distinct from the justification to exercise it.
Regarding the interplay of sections, the Court observed:
“Section 35(3) of the BNSS, 2023, once again, reiterates the object of the enactment that an arrest by a police officer is not mandatory in all cases… Insofar as the offences punishable with imprisonment up to a period of 7 years are concerned, this provision will have to be read along with Section 35(1)(b) of the BNSS, 2023.”
The Court affirmed the view taken by the Bombay High Court in Chandrashekhar Bhimsen Naik, finding no contradiction in it. The Bench clarified that under Section 35(5), if an accused complies with the notice, they cannot be arrested unless the officer records specific reasons for the necessity of arrest.
Regarding Section 35(6), which deals with non-compliance with a notice, the Court held:
“While making an arrest under Section 35(6) of the BNSS, 2023, after the stage of issuing a notice seeking presence under Section 35(3) of the BNSS, 2023, the circumstances and factors that were in existence at the time of issuing the said notice shall not be taken into consideration by a police officer while making an arrest subsequently.”
The Decision
The Supreme Court concluded that a notice under Section 35(3) is the rule for offences punishable with imprisonment up to 7 years. The Court laid down the following key conclusions:
- Arrest is Discretionary: An arrest is a mere statutory discretion and shall not be termed as mandatory.
- Necessity Test: A police officer must ask whether an arrest is necessary before undertaking the exercise.
- Conditions for Arrest: For offences up to 7 years, the mandate of Section 35(1)(b)(i) along with one of the conditions in Section 35(1)(b)(ii) must exist.
- Notice is the Rule: Issuing a notice under Section 35(3) is the rule.
- Arrest as Last Resort: Even if conditions for arrest exist, it shall not be undertaken unless “absolutely warranted.”
- Exception: The power of arrest under Section 35(6) read with Section 35(1)(b) is not a matter of routine but an exception, and police officers are expected to be “circumspect and slow in exercising the said power.”
The Court disposed of the applications with these clarifications.
Case Details:
- Case Title: Satender Kumar Antil v. Central Bureau of Investigation and Anr.
- Case No.: MA No. 2034 of 2022 in MA No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 (with connected matters)
- Coram: Justice M.M. Sundresh and Justice Nongmeikapam Kotiswar Singh
