Supreme Court: While considering this petition revolving around issues related to issuance of notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) qua an offence punishable with imprisonment up to 7 years; the Division Bench of M.M. Sundresh and N. Kotiswar Singh, JJ., held that for effecting an arrest, regarding an offence punishable with imprisonment up to 7 years, the mandate of Section 35(1)(b)(i) of the BNSS along with any one of the conditions mentioned in Section 35(1)(b)(ii) of the BNSS must be in existence. The Court emphasised that a notice under Section 35(3) BNSS to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule.
During the hearing of the matter, the Amicus Curiae relying on Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, had submitted that, in the absence of specific circumstances under Sections 35(1)(b)(i) and 35(1)(b)(ii) BNSS existing, an arrest by a Police Officer, qua an offence punishable with imprisonment up to 7 years, is not legally justified. The Amicus further highlighted Para 21 of the judgment rendered by Bombay High Court in Chandrashekhar Bhimsen Naik v. State of Maharashtra, 2025 SCC OnLine Bom 5357, and urged that this Paragraph requires examination by Supreme Court owing to seemingly conflicting positions regarding offences punishable with imprisonment up to 7 years.
The Amicus thus urged the Court to consider clarifying whether notices under Section 35(3) of the BNSS 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.
Court’s Assessment:
Perusing the submissions, the Court framed the following issues:
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Whether notices under Section 35(3) BNSS are to be mandatorily issued in all cases, qua an offence punishable with imprisonment up to 7 years?
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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?
Considering the issues, the Court explained that 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 was pointed out that Section 35 BNSS provides for situations where a person may be arrested by a police officer, without a warrant. The Court explained that Section 35(1), 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) BNSS are distinct and different from each other, with the commonality being an offence which is cognizable in nature.
To attract the power of arrest under Section 35(1)(b), 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. Section 35(1)(b)(i) 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 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”.
The Court thus stated 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.
The Court further pointed out that Section 35(3) BNSS 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) BNSS, 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. Hence, it is amply clear that a harmonious construction of Section 35(1)(b) and Section 35(3) of the BNSS needs to be made.
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.
The Court further stated that it did not find any contradiction in Bombay High Court’s opinion in Chandrashekhar Bhimsen Naik (supra). The Court thus explained 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 Court further stated that 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.
Conclusions:
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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.
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Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise.
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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.
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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.
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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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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.
[Satender Kumar Antil v. CBI, MA NO.2034 OF 2022, decided on 15-1-2026]
Advocates who appeared in this case:
For Petitioner(s): Mr. Sidharth Luthra, Sr. Adv. Mr. D. L. Chidananda, AOR Mr. Karl P Rustomkhan, Adv. Mr. Mohd. Osama, Adv. Mr. Rajneesh Sharma, Adv. Mr. Suhail Ahmed, Adv
For Respondent(s): Mrs. Aishwarya Bhati, A.S.G. Mr. Mukesh Kumar Maroria, AOR Ms. Priyanka Das, Adv. Mr. Mohd Akhil, Adv. Mr. Padmesh Mishra, Adv. Ms. Shrdha Deshmukh, Adv. Ms. Sairica Raju, Adv. Mr. Annam Venkatesh, Adv. Mr. Udai Khanna, Adv. Mr. Vatsal Joshi, Adv. Ms. Aishwarya Bhati, A.S.G. Mr. Vatsal Joshi, Adv. Ms. Kanu Agrawal, Adv. Mr. Varun Chugh, Adv. Mr. Bhuvan Kapoor, Adv. Mr. Krishna Kant Dubey, Adv. Mr. Piyush Beriwal, Adv. Ms. Indira Bhakar, Adv. Mr. Harish Pandey, Adv. Mr. Shashwat Parihar, Adv. Mr. Santosh Ramdurg, Adv. Mr. Rajesh singh Chavhan, Adv. Mr. Shreekant Neelappa Terdal, AOR Mr. Arvind Kumar Sharma, AOR Mr. Mahesh Agarwal, Adv. Mr. Ankur Saigal, Adv. Mr. Anshuman Srivastava, Adv. Mr. Shashwat Singh, Adv. Mr. E. C. Agrawala, AOR Mr. Abhimanyu Tewari, AOR Mr. Pukhrambam Ramesh Kumar, AOR Mr. Karun Sharma, Adv. Ms. Anupama Ngangom, Adv. Ms. Rajkumari Divyasana, Adv. Mr. Aravindh S., AOR Ms. Jyotika Sharma, Adv. Mr. Anando Mukherjee, AOR Mr. Shwetank Singh, Adv. Mr. Utkarsh Anand, Adv. Mr. Malak Manish Bhatt, AOR Mr. Amit Gupta, AOR Mr. Amit Gupta, Adv. Ms. Muskan Nagpal, Adv. Mr. Kshitij Vaibhav, Adv. Ms. Swati Ghildiyal, AOR Ms. Deepanwita Priyanka, Adv. Ms. Neha Singh, Adv. Mr. Rishi Yadav, Adv. Mr. Sudarshan Singh Rawat, AOR Ms. Saakshi Singh Rawat, Adv. Mr. Sunny Sachin Rawat, Adv. Mr. Akshay Amritanshu , AOR Mr. Sartha Srivastava, Adv. Mr. Nikhil Jain AOR Mr. Arjun Garg, AOR Mr. Saaransh Shukla, Adv. Ms. Muskan Bensla, Adv. Mr. Shaurya Sahay, AOR Mr. Aman Jaiswal, Adv. Ms. Palak Mathur, Adv. Mr. Abhishek Singh, AOR Mr. Sabarish Subramanian, AOR Mr. Aditya Vaibhav Singh Ga, Adv. Mr. Harmeet Singh Ruprah, AOR Mr. P. I. Jose, AOR Ms. P S Chandralekha, Adv. Mr. Pradeep Misra, AOR Mr. Karan Sharma, AOR Mr. Guntur Pramod Kumar, AOR Ms. Prerna Singh, Adv. Mr. Dhruv Yadav, Adv. Mr. Abhikalp Pratap Singh, AOR Ms. Aagam Kaur, Adv. Ms. Kashish Jain, Adv. Mr. Siddharth Garg, Adv. Mr. V. N. Raghupathy, AOR Mr. Suvendu Suvasis Dash, AOR Mr. Amit Pai, AOR Ms. Pankhuri Bhardwaj, Adv. Mr. Tathagata Dutta, Adv. Ms. Vishakha, AOR Miss Astha Singh, AOR Mr. Shailja Singh ,Adv. Mr. Sanjai Kumar Pathak, AOR Mrs. Shashi Pathak, Adv. Mr. Arvind Kumar Tripathi, Adv. Mr. Robin Kumar, Adv. Ms. Shweta Jayshankar Dwivedi, Adv. Ms. Smriti Singh, Adv. Mr. Nishe Rajen Shonker, AOR Mrs. Anu K Joy, Adv. Mr. Alim Anvar, Adv. Mr. Santhosh K, Adv. Mrs. Devika A.l., Adv. Mr. Ramesh Babu M. R., AOR Mr. Sanchit Garga, AOR Mr. Kunal Rana, Adv. Mr. Shashwat Jaiswal, Adv. Mr. Abhay Anil Anturkar, Adv. Mr. Dhruv Tank, Adv. Ms. Surbhi Kapoor, AOR Mr. Sarthak Mehrotra, Adv. Mr. Bhagwant Deshpande, Adv. Ms. Subhi Pastor, Adv. Mr. Ajay Pal, AOR Mr. Kunal Chatterji, AOR Ms. Maitrayee Banerjee, Adv. Mr. Rohit Bansal, Adv. Mr. Varij Nayan Mishra, Adv. Ms. Devina Sehgal, AOR Mr. Dhananjay Yadav, Adv. Mr. Yatharth Kansal, Adv. Ms. Eliza Barr, Adv. Ms. Disha Singh, AOR Mr. Mahfooz Ahsan Nazki, AOR Mr. Prashant Shrikant Kenjale, AOR Mr. Ahanthem Henry, Adv. Mr. Ahanthem Rohen Singh, Adv. Mr. Mohan Singh, Adv. Mr. Aniket Rajput, Adv. Ms. Khoisnam Nirmala Devi, Adv. Mr. Yeshu Mehta, Adv. Mr. Tanay Hegde, Adv. Mr. Kumar Mihir, AOR Mr. Avdhesh Kumar Singh, A.A.G. Ms. Prerna Dhall, Adv. Mr. Ambuj Swaroop, Adv. Mr. Kapil Katare, Adv. Ms. Rajnandani Kumari, Adv. Mr. Prashant Singh, AOR Mr. Dhananjay Kumar Singh, Adv. Mr. Saksham Gahoi, Adv. Mr. Vishwas Sharma, Adv. Mr. Shiv Mangal Sharma, A.A.G. Ms. Abhinandini Sharma, Adv. Ms. Nidhi Jaswal, AOR Mr. R. Basant, Sr. Adv.(not present) Mr. T. G. Narayanan Nair, AOR Ms. Samyuktha H Nair, Adv. Mr. Manish Kumar, AOR Mr. Divyansh Mishra, Adv. Mr. Kumar Saurav, Adv. Ms. Rashmi Nandakumar, AOR Ms. Yashmita Pandey, Adv. Mr. Rajiv Kumar Choudhry, AOR Mr. Kunal Mimani, AOR Mr. Prashant Alai, Adv. Mr. Amit Sharma, AOR Mr. Dipesh Sinha, Adv. Ms. Pallavi Barua, Adv. Ms. Aparna Singh, Adv. Mr. Maibam Nabaghanashyam Singh, AOR Mr. Parth Awasthi, Adv. Mr. Pashupathi Nath Razdan, AOR Ms. Maitreyee Jagat Joshi, Adv. Mr. Astik Gupta, Adv. Ms. Akanksha Tomar, Adv. Ms. Astha Sharma, AOR Ms. Nidhi Mittal, AOR Mr. Shishir Kumar Saxena, Adv. Mr. R.n. Pareek, Adv. Mr. Ankur Parihar, Adv. Mr. R.d. Maurya, Adv. Mr. Praveen Swarup, AOR Mr. Avijit Mani Tripathi, AOR Mr. T.k. Nayak, Adv. Ms. Marbiang Khongwir, Adv. Mr. Sameer Abhyankar, AOR Mr. Rahul Kumar, Adv. Mr. Aakash Thakur, Adv. Mr. Vishal Prasad, AOR Ms. Asmita Singh, AOR Ms. Asmita Singh, Adv. Ms. Ankita Makan, Adv. Mr. Kaushik Choudhury, AOR Mr. Debojit Borkakati, AOR Ms. Pallavi Langar, AOR Ms. Pragya Bhagel, Adv. Mr. Sujeet Kumar Chaubey, Adv. Mr. Nirnimesh Dube, AOR Mr. Somesh Chandra Jha, AOR M/S. Arputham Aruna And Co, AOR Mr. R. Ayyam Perumal, AOR Mr. Yashvardhan, Adv. Mr. Apoorv Shukla, AOR Ms. Prabhleen A. Shukla, Adv. Mr. Aman Panwar, Adv. Mr. Mudit Gupta, AOR Mr. Akash Panwar, Adv. Mr. Abhinav Kumar, Adv. Mr. Manav Kaushik, Adv. Mr. Ashish Batra, AOR Mr. Ankur Prakash, AOR Ms. K. Enatoli Sema, AOR Mr. Amit Kumar Singh, Adv. Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv. Ms. Yanmi Phazang, Adv. Mr. Rahul Gupta, AOR Mr. Sarad Kumar Singhania, AOR Ms. Rooh-e-hina Dua, AOR Mr. Shrirang B. Varma, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Varinder Kumar Sharma, AOR Mr. S. K. Bandopadhyay, Adv. Ms. Manisha Ambwani, AOR Mr. Anjuman Tripathy, AOR Mr. Aditya Jain, AOR Mr. Somanadri Goud Katam, AOR Mr. Sirajuddin, Adv. Mr. Sunny Choudhary, AOR Mr. Aditya Vaibhav Singh Ga, Adv. Mr. Harmeet Singh Ruprah Aor, Adv. Mr. Shuvodeep Roy, AOR Mr. Deepayan Dutta, Adv. Mr. Saurabh Tripathi, Adv. Ms. Enakshi Mukhopadhyay Siddhanta, AOR Mr. Rao Raj Bahadur Singh, Adv. Ms. Archana Sharma, Adv. Mr. Suriya Kannan Sabanayagam, Adv.