Notice Under Section 35(3) BNSS 2023 Is the Rule; Arrest for Offences Up to Seven Years Is an Exception, Supreme Court Holds

A bench of Justice M. M. Sundresh and Justice Nongmeikapam Kotiswar Singh heard submissions on whether notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) were mandatorily required in all cases of cognizable offences punishable with imprisonment up to seven years and whether, in the absence of the specific circumstances in Section 35(1)(b)(i) and (ii), an arrest by a police officer in such cases was legally justified.

The Court summarised that the power of arrest under Section 35 was discretionary and emphasised that issuance of a notice under Section 35(3) was the norm for offences punishable up to seven years, while arrest remained a limited exception. The Court approved the High Court of Bombay’s approach in Chandrashekhar Bhimsen Naik and relied on the precedents in Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. CBI to read down routine arrests. The Court reiterated that a police officer must form a “reason to believe” under Section 35(1)(b)(i) and must be satisfied as to necessity under Section 35(1)(b)(ii) before effecting an arrest, and that reasons must be recorded in writing whether arrest was made or not. The Court, in its reasoning, observed: “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.” The Court further noted that arrest must be a strict objective necessity and not a matter of convenience.

Background

The dispute arose on reference in Special Leave Petition (Crl.) No. 5191 of 2021 and connected MAs regarding whether police must as a matter of course issue a notice under Section 35(3) BNSS, 2023 (pari materia to Section 41‑A CrPC) before arresting an accused in offences punishable up to seven years, and whether recording “reasons for arrest” could bypass that mandate. Learned Amicus Curiae, Mr. Sidharth Luthra, submitted that absent the conditions in Section 35(1)(b)(i) and (ii) an arrest was not justified and relied on Arnesh Kumar (2014) to urge strict compliance. The Additional Solicitor General, Ms. Aishwarya Bhati, submitted that Arnesh Kumar and this Court’s subsequent decision in Satender Kumar Antil had already settled the position, and that Section 35(1)(b) allowed deviation from the notice obligation only when valid recorded reasons existed.

The Court examined statutory text and prior authorities, including Arnesh Kumar and Joginder Kumar, and outlined the scope of “investigation” and the safeguards for personal liberty under Article 21. It accepted that Section 35(1)(b)(i) required a police officer to have a reason to believe on material and that Section 35(1)(b)(ii) required satisfaction that arrest was necessary for one of the specified purposes; both elements must be recorded. The Court quoted earlier authority that “The existence of the power to arrest is one thing. The justification for the exercise of it is quite another,” and held that an investigation could proceed without arrest. The Court clarified that where a notice under Section 35(3) was served and complied with, Section 35(5) barred arrest except for recorded reasons; where a notice was not complied with, Section 35(6) allowed arrest only on new material not available at the time of notice and remained a last resort. The Court directed that the power of arrest be exercised sparingly, with objective necessity and written reasons, and endorsed the view that mechanical or routine arrests were impermissible. The petition moved in the connected proceedings was considered in light of these principles and the Court granted the clarificatory directions described above.

Case Details: Case No.: MA No.2034 of 2022 in MA No.1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 (reported as 2026 INSC 115) Case Title: Satender Kumar Antil v. Central Bureau of Investigation and Anr. Appearances: For the Petitioner(s): [Advocates not indicated in the order] For the Respondent(s): Ms. Aishwarya Bhati, Additional Solicitor General of India; Mr. Sidharth Luthra, Amicus Curiae (appearing on submissions recorded)