The Supreme Court has ruled that police must issue a prior notice before arresting an accused in offences punishable with imprisonment up to seven years under the BNSS. The Court clarified that arrest is an exception, not a routine step, and must be made only when absolutely necessary.
The Supreme Court has clearly ruled that in cases where an offence is punishable with imprisonment of up to seven years, the police must first issue a notice to the accused before making an arrest. The ruling was delivered in the case while interpreting Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
A Bench of Justices MM Sundresh and N Kotiswar Singh made it clear that arrest by the police is not compulsory, but only a discretionary power given by law. The Court stressed that arrest should only be used to help the investigation and not as a routine or default action.
The Bench observed:
“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 further clarified that even if the law allows arrest in certain situations, the police should still avoid arrest unless it becomes absolutely necessary. Emphasising this point, the Bench said:
“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 Supreme Court was examining an important legal question — whether issuing a notice under Section 35(3) of the BNSS is mandatory in all cases where the punishment does not exceed seven years of imprisonment.
Section 35(3) of the BNSS requires the police to issue a notice asking the accused to appear and cooperate with the investigation when arrest is not immediately required. This provision aims to protect personal liberty and prevent unnecessary arrests.
During the hearing, Senior Advocate Siddharth Luthra, appearing as amicus curiae, argued that in offences punishable with imprisonment of up to seven years, the police cannot arrest an accused automatically. He submitted that arrest is permissible only if the specific legal conditions mentioned in the BNSS are fully satisfied.
Luthra referred to a 2025 judgment of the Bombay High Court in Chandrashekhar Bhimsen Naik v. State of Maharashtra. He pointed out that while the judgment mandates issuance of notice under Section 35(3) of the BNSS, it also appears to allow arrest in similar cases if valid “reasons of arrest” are recorded by the police.
According to him, this interpretation creates confusion and a grey area regarding how strictly the police must comply with Section 35(3) of the BNSS.
On the other hand, Additional Solicitor General Aishwarya Bhati told the Court that the legal position is already settled by earlier judgments. She submitted that arrest in such cases is never automatic and can be made only when the statutory conditions for arrest are clearly fulfilled.
The Supreme Court agreed that the language of the law itself supports this position. It noted that Section 35(1) of the BNSS, which deals with arrest without a warrant, uses the word “may” and not “shall”. This clearly shows that arrest is permissive and discretionary, not mandatory.
The Court further explained that before arresting a person for an offence punishable with imprisonment up to seven years, the police officer must first form a reasonable belief that the accused has committed the offence, as required under Section 35(1)(b)(i) of the BNSS.
The Bench observed:
“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 also ruled that once a police officer decides that arrest is truly necessary, the law mandates recording reasons in writing. This requirement ensures transparency and prevents misuse of power.
Highlighting the seriousness of personal liberty, the Supreme Court stated that arrest powers must be used only when objectively required and not for the convenience of the investigating officer.
The Bench said:
“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 again underlined that even when legal grounds for arrest exist, the police must exercise restraint and avoid arrest unless there is no other option.
Finally, the Supreme Court concluded that arrest after issuing a notice under Section 35(3) of the BNSS should be treated as a rare exception, not a routine step.
It observed:
“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,”
This judgment reinforces the Supreme Court’s consistent stand against unnecessary arrests and strengthens the protection of individual liberty under criminal law, while ensuring that police investigations remain fair, lawful, and accountable.
Case Title:
Satendar Kumar Antil vs. CBI
Read Judgement:
Click Here to Read More Reports On Arrest
FOLLOW US FOR MORE LEGAL UPDATES ON YOUTUBE
