The Supreme Court recently ruled that police officers must issue a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) before arresting a person in cases involving offences punishable with imprisonment of up to seven years [Satendar Kumar Antil vs. CBI].
A bench of Justices MM Sundresh and N Kotiswar Singh observed that arrest by a police officer is a mere statutory discretion, meant to facilitate investigation and cannot be treated as a mandate.
"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," the Court said.
It added,
"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."
The Court was examining whether the police must mandatorily issue a notice under Section 35(3) of the BNSS in all cases punishable with imprisonment of up to seven years.
Section 35(3) requires the police to issue a notice calling upon the accused to appear and cooperate when arrest is not required.
Senior Advocate Siddharth Luthra, appearing as amicus curiae, argued that in cases punishable with imprisonment of up to seven years, the police cannot arrest an accused unless the specific conditions laid down under the BNSS are satisfied.
Luthra referred to a judgment of the Bombay High Court in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025). He argued that while the judgment mandates issuance of notice under Section 35(3) of the BNSS to the accused, it also appears to permit arrest in the same category of offences if valid “reasons of arrest” are recorded.
He thus contended that this creates a grey area regarding procedural compliance with Section 35(3) of the BNSS.
Additional Solicitor General (ASG) Aishwarya Bhati contended that the position of law has already been settled by earlier judgments. She also argued that an arrest in such cases is not automatic and can be made only if the statutory conditions justifying such an arrest are satisfied.
The Court noted that Section 35(1) of the BNSS, which deals with situations in which the police may arrest a person without a warrant, uses the word “may”, thus making it clear that the power to arrest is discretionary and not automatic.
It further explained that for arrest in offences punishable with imprisonment of up to seven years, the police must first have reason to believe under Section 35(1)(b)(i) of the BNSS that the accused has committed the offence
"To attract the power of arrest under Section 35(1)(b) of the BNSS, 2023, the conditions mentioned thereunder ought to be complied with scrupulously. 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) of the BNSS, 2023 is a sine qua non in all cases of arrest," the Court added.
The Court further held that once a police officer reaches the conclusion that an arrest is necessary, the law requires him to record reasons in writing.
It emphasised that the power of arrest must be interpreted "as a strict objective necessity", and not a subjective convenience for the police officer.
“It does not mean the police officer can arrest to simply ask questions. However, it means that the police officer must satisfy himself that the investigation, qua an offence punishable with imprisonment up to 7 years, cannot proceed effectively without taking the concerned individual into custody,” the Court said.
The Court added that even if circumstances warranting arrest exist under Section 35(1)(b) of the BNSS, arrest should not be undertaken unless it is 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,” the Court said.
[Read Judgment]