Arrest Is An Exception, Notice Mandatory Under Section 35(3) BNSS In Offences Punishable Up To Seven Years: Supreme Court
Kiran Raj
The Supreme Court of India Division Bench of Justice M. M. Sundresh and Justice Nongmeikapam Kotiswar Singh held that, for cognizable offences carrying imprisonment up to seven years, the police must first serve a notice of appearance under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, as the ordinary course. The Court clarified that no arrest can be effected for offences punishable with less than seven years’ imprisonment unless this mandatory notice requirement is complied with. It further directed that arrest in such cases is an exception, permissible only when statutory conditions justifying arrest exist and reasons are recorded, including after a notice, and not as a routine investigative step.
The matter arose from proceedings concerning the scope of arrest powers under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), particularly in cases involving offences punishable with imprisonment up to seven years. The petitioner sought clarification on whether issuance of notice under Section 35(3) BNSS is mandatory before arrest and whether arrest is justified in the absence of circumstances contemplated under Sections 35(1)(b)(i) and 35(1)(b)(ii).
The learned Amicus Curiae submitted that arrest in such cases is not legally justified unless the statutory conditions are satisfied, relying on prior precedent. Attention was drawn to a decision of a High Court interpreting Section 35(3) as mandating notice, while also permitting arrest upon recording valid reasons. It was contended that this created ambiguity regarding procedural compliance.
The learned Additional Solicitor General submitted that the legal position stood settled by earlier decisions interpreting the analogous provisions of the Code of Criminal Procedure, 1973, and that Section 35 itself provides exceptions permitting arrest where conditions are satisfied. The dispute centred on harmonising Sections 35(1)(b) and 35(3)–(6) BNSS.
The Court observed at the outset: “A seminal issue which has arisen for our consideration is: Whether notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023… are to be mandatorily issued in all cases, qua an offence punishable with imprisonment up to 7 years?”
It recorded that the consequential question was whether, in the absence of circumstances under Sections 35(1)(b)(i) and (ii), arrest would be legally justified.
On the nature of arrest, the Court observed: “An arrest, being an act done by a police officer in furtherance of an investigation, is discretionary and optional to be applied on the facts of a particular case.” It further stated: “Section 35(1) of the BNSS, 2023, through the use of the word ‘may,’ makes the position of law rather clear that the power of arrest is discretionary and optional.”
Regarding the statutory conditions, the Court recorded: “Section 35(1)(b)(i) and Section 35(1)(b)(ii) of the BNSS, 2023 must be read together, meaning thereby that compliance with Section 35(1)(b)(i) … is a sine qua non in all cases of arrest.”
It observed: “Additionally, any one of the conditions mentioned under Section 35(1)(b)(ii) … must also be satisfied.” On notice, the Court stated: “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.”
It further observed: “A harmonious construction of Section 35(1)(b) and Section 35(3) of the BNSS, 2023 needs to be made. it is amply clear that even if the conditions mentioned under Section 35(1)(b) of the BNSS, 2023 are in existence, there can be no mandatory arrest, as a police officer still may or may not decide to do so.”
The Bench clarified: “Hence, we have no hesitation to hold that a notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua an offence punishable with imprisonment up to 7 years, is the rule, while an arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023, is a clear exception.”
It also recorded: “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 Court further stated: “While making an arrest under Section 35(6) … 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 Court concluded that “An arrest by a police officer is a mere statutory discretion which facilitates him to conduct proper investigation, in the form of collection of evidence and, therefore, shall not be termed as mandatory. Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise.”
“For effecting an arrest, qua an offence punishable with imprisonment up to 7 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) of the BNSS, 2023 must be in existence. A notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule.”
“Even if the circumstances warranting an arrest of a person are available in terms of the conditions mentioned under Section 35(1)(b) of the BNSS, 2023, the arrest shall not be undertaken, unless it absolutely warranted.”
“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.”
Case Title: Satender Kumar Antil v. Central Bureau of Investigation and Another
Neutral Citation: 2026 INSC 115
Case Number: MA No. 2034 of 2022 (in SLP (Crl.) No. 5191 of 2021)
Bench: Justice M. M. Sundresh, Justice Nongmeikapam Kotiswar Singh
