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2026 Supreme(SC) 125

SUPREME COURT OF INDIA
M. M. SUNDRESH, NONGMEIKAPAM KOTISWAR SINGH, JJ.
Satender Kumar Antil – Petitioner
Versus
Central Bureau of Investigation And Anr. – Respondents
MA No. 2034 of 2022 IN MA No. 1849 OF 2021 IN Special Leave Petition (Crl.) No. 5191 OF 2021 With MA No. 2035 of 2022 In Special Leave Petition (Crl.) NO. 5191 of 2021
Decided On : 15-01-2026

Advocates appeared:
For the 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 the 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.

IMPORTANT POINT
(1) 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 shall not be termed as mandatory.
(2) Arrest – Mandatory notice – As a matter of course, notice under Section 35(3) of BNSS, 2023 is to be issued to accused or any individual concerned, qua an offence punishable with imprisonment up to 7 years.
(3) Procedure contained in Section 35(6) of BNSS, 2023 has been introduced on touchstone of Article 21 of Constitution of India – Power of arrest under Section 35(6) read with Section 35(1)(b) of BNSS, 2023 must be interpreted as a strict objective necessity, and not a subjective convenience for police officer.

Headnote:

(A) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 35 (3)[ Section 41-A of Cr.P.C.] – Arrest – Arrest, being an act done by a police officer in furtherance of investigation, is discretionary and optional to be applied on facts of a particular case – To attract power of arrest under Section 35(1)(b) of BNSS, 2023, conditions mentioned thereunder ought to be complied with scrupulously – Compliance with Section 35(1)(b)(i) of BNSS, 2023 is a sine qua non in all cases of arrest – It is not required that all conditions mentioned under Section 35(1)(b)(ii) of BNSS, 2023 should be available, but only existence of one of them that is required – Investigation can go on even without an arrest – While undertaking exercise of collecting evidence for the purpose of forming his opinion over commission of a cognizable offence, police officer shall pose a question, to himself, on necessity of arrest. (Paras 17, 19, 20 and 22)

(B) Criminal Procedure Code, 1973 – Section 41-A – Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 35 (3) – Constitution of India – Article 21 – Arrest – Mandatory notice – As a matter of course, notice under Section 35(3) of BNSS, 2023 is to be issued to accused or any individual concerned, qua an offence punishable with imprisonment up to 7 years – As long as a person to whom notice under Section 35(3) of BNSS, 2023 is issued has complied and continues to comply with terms of notice, it is not open for police officer to arrest him unless, for reasons to be recorded, police officer is of the opinion that he ought to be arrested – Even assuming that person to whom a notice under Section 35(3) of BNSS, 2023 has been issued, fails to comply with terms of notice or is unwilling to identify himself, arrest is not a matter of course – Procedure contained in Section 35(6) of BNSS, 2023 has been introduced on touchstone of Article 21 of Constitution of India – These inbuilt safeguards are required to be complied with by police officer, in letter and spirit – Power of arrest under Section 35(6) read with Section 35(1)(b) of BNSS, 2023 must be interpreted as a strict objective necessity, and not a subjective convenience for police officer. (Paras 26, 27, 31, 32 and 33)

Facts of the case:

1. A seminal issue which has arisen for consideration is: Whether notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 are to be mandatorily issued in all cases, qua an offence punishable with imprisonment up to 7 years?

2. The consequential issue is: Whether in absence of circumstances under Sections 35(1)(b)(i) and 35(1)(b)(ii) of BNSS, 2023 existing, is an arrest by a police officer, qua an offence punishable with imprisonment up to 7 years, legally justified?

Findings of Court:

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.

Result : Issues answered.

Judgement Key Points

Upon receiving credible information about the commission of a cognizable offence punishable with imprisonment for a term of less than seven years or with fine only:

  1. Register the information as per Section 173 BNSS if it discloses a cognizable offence, and proceed to investigate without any need for prior permission or arrest. (!)

  2. Issue a notice under Section 35(3) BNSS as the default and mandatory first step, directing the person named or described in the information to appear before the police officer at a specified place and time (within 2 weeks, extendable with reasons recorded). This applies unless arrest is warranted under Section 35(1). (!) (!) (!) (!) (!) (!)

  3. Assess necessity for arrest before issuing notice or at any stage: Arrest is discretionary (police "may" arrest), not mandatory or routine. It requires:

  4. Reason to believe the person committed the offence [Section 35(1)(b)(i)], and
  5. At least one condition under Section 35(1)(b)(ii), such as preventing further offence, ensuring proper investigation, preventing tampering/absconding, or ensuring attendance when notice is not responded to [Section 35(1)(b)(ii)(A) to (E)]. Reasons for arrest must be recorded in writing beforehand. (!) (!) (!) (!) (!) (!) (!) (!) (!)

  6. Proceed with investigation independently: Investigation under Chapter XII BNSS (including Section 176 for serious cases) can and should continue without arrest, using notice compliance for cooperation (e.g., statements, documents). (!)

  7. If notice issued and complied with:

  8. No arrest unless fresh reasons are recorded under Section 35(5) showing necessity under Section 35(1)(b) based on new material/materials not available earlier. (!) (!) (!) (!) (!) (!)

  9. If notice violated or person unwilling to identify:

  10. Arrest may be made under Section 35(6), but only after recording reasons satisfying Section 35(1)(b), and the arrested person must be produced before Magistrate within 24 hours (excluding journey time). (!) (!) (!)

Arrest must always be the exception based on objective necessity ("why arrest?"), not subjective convenience, with safeguards like informing grounds and right to bail under Section 35(4) if arrested without warrant. (!) (!) (!)


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 mandatorily issued in all cases, qua an offence punishable with imprisonment up to 7 years?

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 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 regarding pr

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