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
(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.
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:
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. (!)
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). (!) (!) (!) (!) (!) (!)
Assess necessity for arrest before issuing notice or at any stage: Arrest is discretionary (police "may" arrest), not mandatory or routine. It requires:
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. (!) (!) (!) (!) (!) (!) (!) (!) (!)
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). (!)
If notice issued and complied with:
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. (!) (!) (!) (!) (!) (!)
If notice violated or person unwilling to identify:
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:
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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