M. M. SUNDRESH, N. KOTISWAR SINGH
Satender Kumar Antil – Appellant
Versus
Central Bureau of Investigation – Respondent
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 Maharashtr
Arnesh Kumar v. State of Bihar & Anr
Vicky Bharat Kalyani v. State of Maharashtra
Satender Kumar Antil v. Central Bureau of Investigation
State of Uttar Pradesh v. Bhagwant Kishore Joshi
Joginder Kumar v. State of UP And Ors. (1994) 4 SCC 260 [Para 22] – Relied
(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) Arr....
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