Satender Kumar Antil vs. Central Bureau Of Investigation

2026 INSC 115
REPORTABLE

IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION

MA NO.2034 OF 2022
IN
MA NO. 1849 OF 2021
IN
SPECIAL LEAVE PETITION (CRL.) NO. 5191 OF 2021


SATENDER KUMAR ANTIL … PETITIONER


VERSUS


CENTRAL BUREAU OF INVESTIGATION
AND ANR. … RESPONDENTS

WITH
MA No. 2035 of 2022
IN
SPECIAL LEAVE PETITION (CRL.) NO. 5191 of 2021

ORDER
1. A seminal issue which has arisen for our consideration is: Whether
notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita,
2023 (hereinafter referred to as the “ BNSS, 2023 ”) are to be
Signature Not Verified
mandatorily issued in all cases, qua an offence punishable with
Digitally signed by
SWETA BALODI
Date: 2026.02.04
16:59:25 IST
Reason:
imprisonment up to 7 years?
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2. The consequential issue is: Whether in the absence of circumstances
under Sections 35(1)(b)(i) and 35(1)(b)(ii) of the BNSS, 2023 existing,
is an arrest by a police officer, qua an offence punishable with
imprisonment up to 7 years, legally justified?
SUBMISSIONS ON BEHALF OF THE AMICUS CURIAE
3. At the outset, 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) of the BNSS, 2023 existing, an arrest by a Police
Officer, qua an offence punishable with imprisonment up to 7 years, is
not legally justified. Reliance is placed on the judgment of this Court in
Arnesh Kumar v. State of Bihar & Anr, (2014) 8 SCC 273 .
4. The learned Amicus invites the attention of this Court to the judgment
dated 03.12.2025 passed by the High Court of Bombay, in the matter of
Chandrashekhar Bhimsen Naik v. State of Maharashtra & Ors.,
2025 SCC OnLine Bom 5357 . The following paragraph, in the said
judgment, is reproduced for convenience:
“21. The FIR invoked offences under Bharatiya Nyaya Sanhita and the said
offences involve a punishment less than 7 years and it was therefore
imperative on the part of Investigating Officer to issue a notice under
Section 35(3) of Sanhita directing the accused to appear before him and
upon such a notice being issued, the Petitioner was duty bound to
comply with the terms of the notice. As long as the Petitioner complied
and continued to comply with the notice, in terms of sub section (5) of
Section 35, it was not open for the Investigating Officer to arrest him
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unless by reasons recorded, he express the opinion that the accused
ought to be arrested. It is only if the Petitioner would have failed to
comply with the terms of notice or unwilling to identify himself, in such
case subject to such orders, as may have been passed by a competent
Court, the arrest could have been effected .
The directions issued in Arnesh Kumar , were made applicable to all cases
where the offence is punishable with imprisonment for a term which may
be less than 7 years or which may extend to 7 years, with or without fine.
Emphasizing upon unnecessary arrest of the accused and his detention by
the Magistrate in a casual and mechanical manner, the direction was issued
that all State Governments shall instruct its Police Officers not to arrest
mechanically, and before effecting an arrest, to be satisfied about the
necessity of arrest under the parameters laid down flowing from Section 41
of the Code of 1973. It was, therefore, directed that the Police Officers shall
forward a checklist duly filled in furnishing the reasons and material which
necessitated the arrest, while forwarding/producing the accused before the
Magistrate for further detention.
It is a specific direction in Arnesh Kumar (supra) that the Magistrate shall
also not act mechanically and while authorizing the detention of the accused
shall peruse the report furnished by the Police Officer and only after being
satisfied, shall authorize the detention. ”
(emphasis supplied)
5. According to the learned Amicus, the aforesaid para requires
examination by this Court, as it presents two seemingly conflicting
positions regarding offences punishable with imprisonment up to 7
years.
6. On the one hand, the order makes it imperative for the police officer to
issue a notice under Section 35(3) of the BNSS, 2023 to the accused,
qua an offence punishable with imprisonment of up to 7 years. On the
other hand, it appears to permit the police officer to effect an arrest, in
the very same category of offences, provided that “Reasons of Arrest”
are recorded and valid. It is submitted that this creates a grey area
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regarding procedural compliance of Section 35(3) of the BNSS, 2023,
by the police officer.
7. It is submitted that the requirement to issue a notice under Section 35(3)
of the BNSS, 2023 to the accused, qua an offence punishable with
imprisonment up to 7 years, is absolute, and cannot be bypassed solely
by recording reasons for arrest.
8. It is further submitted that the power of arrest is distinct from the
justification to exercise it. The phrase “for proper investigation of the
offence,” found in Section 35(1)(b)(ii) of the BNSS, 2023, cannot be
interpreted to grant unfettered discretion to the police officer for making
an arrest.
9. It has been brought to our notice that the issue—“Whether notices under
Section 41-A of the Code of Criminal Procedure, 1973 (now Section
35(3) of the BNSS, 2023) are required to be given before arrest in all
cases and in particular in the cases where the offence is punishable up
to 7 years , when the arrest of an accused is necessary?” is currently
pending adjudication before the High Court of Bombay in the matter of
Vicky Bharat Kalyani v. State of Maharashtra, Criminal WP (St.)
No. 24338 of 2024 .
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10. In light of the above, specifically the observations made in
Chandrashekhar Bhimsen Naik (supra) and the pending issue in
Vicky Bharat Kalyani (supra) , it is submitted by the learned Amicus
that this Court may consider clarifying whether notices under Section
35(3) of the BNSS, 2023 are to be mandatorily issued in all cases, qua
an offence punishable with imprisonment up to 7 years , thereby settling
the position of law regarding the interplay between the mandate of
notice and the discretion to arrest.
SUBMISSIONS ON BEHALF OF THE LEARNED ASG
11. At the outset, Ms. Aishwarya Bhati, learned ASG submitted that the
clarification sought for by the learned Amicus regarding the mandatory
nature of notices under Section 41-A of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the “ CrPC, 1973 ”), which
is pari materia to Section 35 of the BNSS, 2023, has already been
conclusively settled by this Court in Arnesh Kumar (supra) and
Satender Kumar Antil v. Central Bureau of Investigation, (2022)
10 SCC 51 .
12. The following paragraphs in the aforesaid judgments are reproduced for
convenience:

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Arnesh Kumar vs. State of Bihar & Anr, (2014) 8 SCC 273

Page 6 of 22

information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other
place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the
notice, he shall not be arrested in respect of the offence referred to in the
notice unless, for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of
the notice or is unwilling to identify himself, the police officer may,
subject to such orders as may have been passed by a competent court in
this behalf, arrest him for the offence mentioned in the notice.”
The aforesaid provision makes it clear that in all cases where the arrest
of a person is not required under Section 41(1) CrPC, the police officer
is required to issue notice directing the accused to appear before him
at a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused
complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police officer is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 CrPC has to be complied and shall be subject
to the same scrutiny by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section 41 CrPC which
authorises the police officer to arrest an accused without an order from a
Magistrate and without a warrant are scrupulously enforced, the wrong
committed by the police officers intentionally or unwittingly would be
reversed and the number of cases which come to the Court for grant of
anticipatory bail will substantially reduce. We would like to emphasise that
the practice of mechanically reproducing in the case diary all or most of the
reasons contained in Section 41 CrPC for effecting arrest be discouraged
and discontinued.
11. Our endeavour in this judgment is to ensure that police officers do
not arrest the accused unnecessarily and Magistrate do not authorise
detention casually and mechanically. In order to ensure what we have
observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A IPC is registered
but to satisfy themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41 CrPC ;
11.2. All police officers be provided with a check list containing
specified sub-clauses under Section 41(1)( b )( ii ) ;
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11.3. The police officer shall forward the check list duly filled and
furnish the reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention … ”
(emphasis supplied)
Satender Kumar Antil v. Central Bureau of Investigation, (2022)

10 SCC 51
29. Despite the dictum of this Court in Arnesh Kumar [ Arnesh Kumar v.
State of Bihar , (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449] , no concrete
step has been taken to comply with the mandate of Section 41-A of the
Code. This Court has clearly interpreted Sections 41(1)( b )( i ) and ( ii )
inter alia holding that notwithstanding the existence of a reason to
believe qua a police officer, the satisfaction for the need to arrest shall
also be present. Thus, sub-clause (1)( b )( i ) of Section 41 has to be read
along with sub-clause ( ii ) and therefore both the elements of “reason to
believe” and “satisfaction qua an arrest” are mandated and
accordingly are to be recorded by the police officer.
*
32. We also expect the courts to come down heavily on the officers
effecting arrest without due compliance of Section 41 and Section 41-A.
We express our hope that the investigating agencies would keep in
mind the law laid down in Arnesh Kumar [ Arnesh Kumar v. State of
Bihar , (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449], the discretion to be
exercised on the touchstone of presumption of innocence, and the
safeguards provided under Section 41, since an arrest is not
mandatory. If discretion is exercised to effect such an arrest, there shall
be procedural compliance . Our view is also reflected by the interpretation
of the specific provision under Section 60-A of the Code which warrants
the officer concerned to make the arrest strictly in accordance with the
Code.”
(emphasis supplied)
13. It is submitted that in Arnesh Kumar (supra), this Court held that in
cases, qua an offence punishable with imprisonment up to 7 years ,
arrest is prohibited, unless the conditions enumerated in
Section 41(1)(b) of the CrPC, 1973 (now Section 35(1)(b) of the
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BNSS, 2023) are satisfied, and explicitly directed that police officers
must not arrest automatically, but they may arrest if they are satisfied
that such arrest is necessary to prevent further offence, for proper
investigation, or to prevent tampering with evidence.
14. It is further submitted that there is no contradiction in the decision of
the High Court of Bombay in Chandrashekhar Bhimsen Naik
(supra). T hough Section 35(3) of the BNSS, 2023 mandates the
issuance of a notice, the legislative intent of Section 35(1)(b) of the
BNSS, 2023 empowers the police officer to deviate from the said
mandate only when the “Reasons for Arrest” are valid and recorded.
15. Finally, it is submitted that as Section 35 of the BNSS, 2023 and the
ratio of the judgments of this court in Arnesh Kumar (supra) and
Satender Kumar Antil (supra) themselves clearly provide the specific
exceptions where arrest is permissible, no further clarification is
required from this Court.
DISCUSSION
16. An investigation by a police officer generally begins with the recording
of information regarding an offence. It is a process which is primarily
aimed at the ascertainment of facts and circumstances surrounding an
alleged crime and involves the police officer proceeding to the spot of
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occurrence to collect evidence and ends with the formation of an
opinion as to whether, on the basis of the material collected, there is a
case to place the accused before a Magistrate for trial and, if so, taking
the necessary steps for the same by filing a charge-sheet. This has been
succinctly dealt with by this Court in the case of State of Uttar Pradesh
v. Bhagwant Kishore Joshi, (1964) 3 SCR 71 in the following
manner:
“17. What is investigation is not defined in the Code of Criminal
Procedure; but in H.N. Rishbud and Inder Singh v. State of Delhi
[(1955) 1 SCR 1150, 1157-58] this Court has described, the procedure,
for investigation as follows :
“Thus, under the Code investigation consists generally of the
following steps, ( 1 ) Proceeding to the spot, ( 2 ) Ascertainment of the
facts and circumstances of the case, ( 3 ) Discovery and arrest of the
suspected offender, ( 4 ) Collection of evidence relating to the
commission of the offence which may consist of ( a ) the examination
of various persons (including the accused) and the reduction of their
statements into writing, if the officer thinks fit, ( b ) the search of places
of seizure of things considered necessary for the investigation and to
be produced at the trial, and ( 5 ) formation of the opinion as to
whether on the material collected there is a case to place the accused
before a Magistrate for trial and if so taking the necessary steps for
the same by the filing of a charge-sheet under Section 173 .”
This Court, however, has not said that if a police officer takes merely one
or two of the steps indicated by it, what he has done must necessarily be
regarded as investigation. Investigation, in substance, means collection
of evidence relating to the commission of the offence. The Investigating
Officer is, for this purpose, entitled to question persons who, in his
opinion, are able to throw light on the offence which has been
committed and is likewise entitled to question the suspect and is
entitled to reduce the statements of persons questioned by him to
writing. He is also entitled to search the place of the offence and to
search other places with the object of seizing articles connected with
the offence. No doubt, for this purpose he has to proceed to the spot
where the offence was committed and do various other things. But the
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main object of investigation being to bring home the offence to the
offender the essential part of the duties of an Investigating Officer in
this connection is, apart from arresting the offender, to collect all
material necessary for establishing the accusation against the offender.
Merely making some preliminary enquiries upon receipt of
information from an anonymous source or a source of doubtful
reliability for checking up the correctness of the information does not
amount to collection of evidence and so cannot be regarded as
investigation. In the absence of any prohibition in the Code, express or
implied, I am of opinion that it is open to a police officer to make
preliminary enquiries before registering an offence and making a full
scale investigation into it … ”
(emphasis supplied)
17. 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. Section 35 of the BNSS, 2023 provides for situations
where a person may be arrested by a police officer, without a warrant.
Section 35 of the BNSS, 2023
“35. When police may arrest without warrant .—(1) Any police officer
may without an order from a Magistrate and without a warrant, arrest
any person—
( a ) who commits, in the presence of a police officer, a cognizable
offence; or
( b ) against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists
that he has committed a cognizable offence punishable with
imprisonment for a term which may be less than seven years or
which may extend to seven years whether with or without fine, if
the following conditions are satisfied, namely:—
( i ) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;
( ii ) the police officer is satisfied that such arrest is necessary—
( a ) to prevent such person from committing any further
offence; or
( b ) for proper investigation of the offence; or
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( c ) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in
any manner; or
( d ) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such facts
to the Court or to the police officer; or
( e ) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured,
and the police officer shall record while making such arrest, his
reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-section, record
the reasons in writing for not making the arrest ; or
( c ) against whom credible information has been received that he has
committed a cognizable offence punishable with imprisonment for a term
which may extend to more than seven years whether with or without fine
or with death sentence and the police officer has reason to believe on the
basis of that information that such person has committed the said offence;
or
( d ) who has been proclaimed as an offender either under this Sanhita or
by order of the State Government; or
( e ) in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected of
having committed an offence with reference to such thing; or
( f ) who obstructs a police officer while in the execution of his duty, or
who has escaped, or attempts to escape, from lawful custody; or
( g ) who is reasonably suspected of being a deserter from any of the Armed
Forces of the Union; or
( h ) who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been concerned in, any act committed at
any place out of India which, if committed in India, would have been
punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody
in India; or
( i ) who, being a released convict, commits a breach of any rule made
under sub-section (5) of Section 394; or
( j ) for whose arrest any requisition, whether written or oral, has been
received from another police officer, provided that the requisition
specifies the person to be arrested and the offence or other cause for which
the arrest is to be made and it appears therefrom that the person might
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lawfully be arrested without a warrant by the officer who issued the
requisition.
(2) Subject to the provisions of Section 39, no person concerned in a non-
cognizable offence or against whom a complaint has been made or credible
information has been received or reasonable suspicion exists of his having
so concerned, shall be arrested except under a warrant or order of a
Magistrate.
(3) The police officer shall, in all cases where the arrest of a person is
not required under sub-section (1) issue a notice directing the person
against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence, to appear before him or at such
other place as may be specified in the notice.
(4) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.
(5) Where such person complies and continues to comply with the
notice, he shall not be arrested in respect of the offence referred to in
the notice unless, for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested.
(6) Where such person, at any time, fails to comply with the terms of
the notice or is unwilling to identify himself, the police officer may,
subject to such orders as may have been passed by a competent Court
in this behalf, arrest him for the offence mentioned in the notice.
(7) No arrest shall be made without prior permission of an officer not below
the rank of Deputy Superintendent of Police in case of an offence which is
punishable for imprisonment of less than three years and such person is
infirm or is above sixty years of age. ”
(emphasis supplied)
18. 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. The power of arrest under Section 35(1)(a)
to Section 35(1)(j) of the BNSS, 2023 are distinct and different from
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each other, with the commonality being an offence which is cognizable
in nature.
19. 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.
20. Section 35(1)(b)(i) of the BNSS, 2023 speaks about the “reason to
believe” on the part of the police officer. Such a reason to believe should
be formed on the basis of a complaint, information, or suspicion that the
person concerned has committed the offence. However, this alone
would not suffice. Additionally, any one of the conditions mentioned
under Section 35(1)(b)(ii) of the BNSS, 2023 must also be satisfied. In
other words, it is not required that all the conditions mentioned under
Section 35(1)(b)(ii) of the BNSS, 2023 should be available, but only the
existence of one of them that is required.
21. After being satisfied that there is a necessity of arrest, a police officer
is bound to record his reasons either for arrest, as provided for under
Section 35(1)(b) of the BNSS, 2023, or for merely issuing a notice
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under Section 35(3) of the BNSS, 2023. Section 35(1)(b) of the BNSS,
2023, thus, carves out an exception, with its inbuilt safeguards.
22. Suffice it is to state that an investigation can go on even without an
arrest. While undertaking the exercise of collecting the evidence for the
purpose of forming his opinion over the commission of a cognizable
offence, a police officer shall pose a question, to himself, on the
necessity of an arrest. This safeguard is provided as, in any case, the
power to arrest an accused person is always available with a police
officer even after he records his reasons, in writing, for not doing so at
an earlier stage.
Joginder Kumar v. State of UP And Ors. (1994) 4 SCC 260
“20...No arrest can be made because it is lawful for the police officer to
do so. The existence of the power to arrest is one thing. The justification
for the exercise of it is quite another. The police officer must be able to
justify the arrest apart from his power to do so. Arrest and detention
in police lock-up of a person can cause incalculable harm to the
reputation and self-esteem of a person. No arrest can be made in a
routine manner on a mere allegation of commission of an offence made
against a person. It would be prudent for a police officer in the interest
of protection of the constitutional rights of a citizen and perhaps in his
own interest that no arrest should be made without a reasonable
satisfaction reached after some investigation as to the genuineness and
bona fides of a complaint and a reasonable belief both as to the person's
complicity and even so as to the need to effect arrest. Denying a person
of his liberty is a serious matter. The recommendations of the Police
Commission merely reflect the constitutional concomitants of the
fundamental right to personal liberty and freedom. A person is not liable to
arrest merely on the suspicion of complicity in an offence. There must be
some reasonable justification in the opinion of the officer effecting the
arrest that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer issues notice to
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person to attend the Station House and not to leave the station without
permission would do.”
(emphasis supplied)
23. 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. This provision applies to all cognizable offences. However,
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, and its proviso which mandates
the furnishing of reasons, in writing, for both, making an arrest and
when there is no requirement to do so. As stated above, the requirement
of not arresting an accused is qua the stage of issuing notice under
Section 35(3) of the BNSS, 2023. Hence, it is amply clear that a
harmonious construction of Section 35(1)(b) and Section 35(3) of the
BNSS, 2023 needs to be made.
Satender Kumar Antil v. Central Bureau of Investigation, 2025 SCC
ONLINE SC 1578
“22. Section 35(4) of the BNSS, 2023 imposes a duty on the recipient
of the notice to the effect that once the notice is served, the person
must comply with every term of the notice. Section 35(5) of the BNSS,
2023 provides that as long as the person to whom the notice is issued,
appears as is required and continues to comply with the notice, they
cannot be arrested in relation to the alleged offence. Arrest may be
made only if the Investigating Agency records specific reasons as to
why the arrest is necessary.”
(emphasis supplied)
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24. Section 35(5) of the BNSS, 2023 facilitates the liberty of a person by
imposing an implied prohibition of arrest when a person complies with
a notice issued under Section 35(3) of the BNSS, 2023. This provision
reiterates the fact that any subsequent arrest, being an exception, is
warranted only when a police officer forms an opinion for such an
arrest, which he is duty bound to record, in writing, by furnishing
adequate reasons.
25. With respect to the submission made by the leaned Amicus, qua the
contradiction in the reasoning of the High Court of Bombay in
Chandrashekhar Bhimsen Naik (supra), on a reading of the judgment,
we did not find any contradiction, as stated. The judgment has clearly
dealt with the mandatory compliance of the provisions of Section 35 of
the BNSS, 2023, by the police officer.
26. Hence, we give our imprimatur to the views expressed by the High
Court of Bombay and, as already observed by us in this order that, as a
matter of course, a notice under Section 35(3) of the BNSS, 2023 is to
be issued to an accused or any individual concerned, qua an offence
punishable with imprisonment up to 7 years and, that, as long as a
person to whom a notice under Section 35(3) of the BNSS, 2023 is
Page 17 of 22

issued has complied and continues to comply with the terms of the
notice then, as per Section 35(5) of the BNSS, 2023, it is not open for
the police officer to arrest him unless, for reasons to be recorded, the
police officer is of the opinion that he ought to be arrested.
Satender Kumar Antil v. Central Bureau of Investigation, 2025 SCC
ONLINE SC 1578

(emphasis supplied)

27. We have already clarified the position qua Section 35(6) of the BNSS,
2023 in our earlier order dated 16.07.2025 wherein, it has been stated
that even assuming that the person to whom a notice under Section
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35(3) of the BNSS, 2023 has been issued, fails to comply with the terms
of the notice or is unwilling to identify himself, an arrest is not a matter
of course.
28. We have also clarified, on the earlier occasion, that the procedure
contained in Section 35(6) of the BNSS, 2023 has been introduced on
the touchstone of Article 21 of the Constitution of India, 1950. These
inbuilt safeguards are required to be complied with by the police officer,
in letter and spirit.
29. From a conspectus of the above, 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.
30. 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. In other words,
for effecting an arrest under Section 35(6) of the BNSS, 2023, it must
be based upon materials and factors which were not available with the
police officer at the time of issuing a notice under Section 35(3) of the
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BNSS, 2023. Therefore, the power of arrest under Section 35(6) of the
BNSS, 2023 is to be exercised rather sparingly, only under
circumstances as aforementioned.
31. 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.
CONCLUSION
32. 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. 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. Any
interpretation to the contrary would clearly frustrate the purpose and
legislative intent of Sections 35(1)(b) and Sections 35(3) to 35(6) of the
BNSS, 2023.

Page 20 of 22

33. On the basis of the interpretation given by us, we conclude as follows:
a. 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.
b. Consequently, the police officer shall ask himself the question as
to whether an arrest is a necessity or not, before undertaking the
said exercise.
c. 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.
d. 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.
e. 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.
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f. 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.
...………………………. J.
(M. M. SUNDRESH)


………………….…………………………. J.
(NONGMEIKAPAM KOTISWAR SINGH)

NEW DELHI;
JANUARY 15, 2026
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