In Satender Kumar Antil v. Central Bureau of Investigation, 2026 INSC 115, the Supreme Court of India has reiterated and strengthened the safeguards governing arrest under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), holding that issuance of notice under Section 35(3) of the BNSS is the rule in cases involving offences punishable with imprisonment of up to seven years.

The Court examined whether police officers are mandatorily required to issue a notice of appearance under Section 35(3) of the BNSS before proceeding to arrest an accused in such cases.

Answering the issue, the Court held in clear terms that for offences punishable with imprisonment of up to seven years, issuance of notice under Section 35(3) is not discretionary but constitutes the default rule, while arrest is an exception. The provision mandates that the police officer issue a notice directing the accused to appear and cooperate with the investigation where arrest is not immediately necessary. The Court emphasised that this requirement is a vital safeguard against arbitrary deprivation of personal liberty.

Interpreting the scheme of Section 35, the Court noted that the use of the expression “may” in Section 35(1) of the BNSS makes it clear that the power to arrest is discretionary and not mandatory. However, such discretion is not unfettered and must be exercised strictly in accordance with the statutory conditions. In particular, the mandate of Section 35(1)(b)(i) of the BNSS, read with any one of the conditions under Section 35(1)(b)(ii) of the BNSS, must be satisfied  namely, the existence of a “reason to believe” that the person has committed the offence, coupled with the necessity of arrest for purposes such as proper investigation or preventing tampering with evidence. Once such satisfaction is reached, the police officer is duty bound to record reasons for arrest in writing.

The Court underscored that these conditions are not mere formalities, observing that:

“To attract the power of arrest… the conditions mentioned thereunder ought to be complied with scrupulously.”

It further clarified that even where such conditions are met, arrest does not follow as a matter of course. The police officer must independently assess whether custody is absolutely necessary for the investigation. The power of arrest, the Court cautioned, must be exercised only as a matter of strict objective necessity, and not as a tool of convenience.

Significantly, the Court held that:

“A notice under Section 35(3)… is the rule,”

and that even where circumstances for arrest may exist,

“the arrest shall not be undertaken, unless it is absolutely warranted.”

The Court also emphasised that arrest cannot be resorted to merely for the purpose of questioning.

Further, the Court clarified that even after issuance of notice under Section 35(3) of the BNSS, the power to arrest under Section 35(6) of the BNSS is not automatic. Even in cases of non-compliance with the notice or failure to identify oneself, arrest is not to be treated as a matter of course. Such power must be exercised sparingly, with due application of mind. Importantly, the Court observed that any arrest under Section 35(6) of the BNSS must be founded on fresh material or circumstances which were not available at the time of issuance of notice under Section 35(3) of the BNSS.

The judgment thus harmonises the statutory framework with constitutional principles of personal liberty, making it clear that procedural safeguards under the BNSS are substantive in nature and require strict compliance. It reinforces that notice, not arrest, is the starting point of investigation in offences punishable up to seven years, and any departure from this principle must be supported by clear, recorded, and legally sustainable reasons. The power to arrest remains an exception, and the police officer is expected to be circumspect and slow in exercising it.

Authored By
Rajat Jain, Advocate
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Mobile No. 9953887311