New Delhi: In a significant judgment that reinforces the protection of personal liberty, the Supreme Court of India has ruled that for offences punishable with imprisonment of up to seven years, issuing a notice of appearance is the mandatory "rule," while arrest remains a "clear exception."
A Bench comprising Justice M.M. Sundresh and Justice Nongmeikapam Kotiswar Singh clarified the interplay between Section 35(1) and Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which has replaced the Code of Criminal Procedure (CrPC). The Court emphasized that the police cannot bypass the requirement of issuing a notice simply by recording reasons for arrest.
The primary question before the Court was whether notices under Section 35(3) of the BNSS (equivalent to Section 41A of the old CrPC) must be mandatorily issued in all cases where the alleged offence carries a maximum punishment of seven years or less.
The Court also examined whether an arrest is legally justified in such cases if the specific circumstances mentioned in Section 35(1)(b) of the BNSS—such as the need to prevent further crimes or tampering with evidence—do not exist.
The judgment draws heavily from the principles laid down in the landmark Arnesh Kumar v. State of Bihar (2014) case. Under the old regime, the Supreme Court had issued strict guidelines to prevent "mechanical arrests" by the police, especially in matrimonial disputes and other cases involving less than seven years of jail time.
With the transition to the BNSS, concerns were raised by the Amicus Curiae, Senior Advocate Sidharth Luthra, regarding a "grey area" created by a recent Bombay High Court order. The Amicus argued that while the High Court called notices mandatory, it also seemed to suggest that recording "reasons for arrest" could allow the police to skip the notice stage entirely.
1. Notice is Mandatory (The Rule)
The Supreme Court held that for any offence where the punishment is up to seven years, a notice under Section 35(3) of the BNSS is the default procedure. The Court stated:
"A notice under Section 35(3) of the BNSS... is the rule, while an arrest... is a clear exception."
2. Arrest is Not a Routine Exercise
The Bench clarified that even if the police have "reason to believe" a crime was committed, arrest is not mandatory. The police officer must ask themselves: "Is this arrest really necessary?" Under Section 35(1)(b)(ii), an arrest is only justified if it is needed to:
- Prevent the person from committing further offences.
- Ensure proper investigation.
- Prevent the person from disappearing or tampering with evidence.
- Prevent threats to witnesses.
- Ensure the person's presence in Court.
3. No Arrest if Notice is Complied With
Section 35(5) of the BNSS provides a safeguard: if a person receives a notice and continues to comply with its terms (i.e., appearing before the officer when called), they cannot be arrested unless the officer forms a specific opinion, backed by written reasons, that custody is absolutely essential.
4. The "Last Resort" Principle
Even if a person fails to comply with a notice (Section 35(6)), the Court clarified that arrest is still not "automatic." It remains the "last resort" for investigating agencies. The Court noted that an arrest under Section 35(6) must be based on new materials or factors that were not available when the initial notice was issued.
The Court emphasized that these safeguards are not mere procedural formalities; they are rooted in Article 21 of the Constitution, which guarantees the right to life and personal liberty. The Bench noted that an arrest causes "incalculable harm to the reputation and self-esteem of a person" and must not be done in a routine or mechanical manner.
The Court explicitly stated that the power of arrest must be interpreted as a "strict objective necessity" and not as a "subjective convenience" for the police to simply ask questions.
Conclusion and Directions
The Supreme Court concluded its 22-page order with clear takeaways for police officers and magistrates across the country:
- Statutory Discretion: Arrest is a tool for investigation, not a mandatory requirement.
- Mandatory Checklist: For offences under 7 years, the police must satisfy the conditions of Section 35(1)(b) and record reasons in writing.
- Notice Priority: Issuing a notice under Section 35(3) must be the first step in most cases.
- Circumspection: Police officers are expected to be "slow" and "circumspect" in exercising the power of arrest.
This judgment serves as a timely reminder to law enforcement agencies that under the new BNSS regime, the spirit of the law remains focused on protecting citizens from arbitrary detention and ensuring that the "power to arrest" is always balanced by the "justification to arrest."
- Case Details: Satender Kumar Antil v. Central Bureau of Investigation & Anr. (MA No. 2034 of 2022)
- Coram: Justice M.M. Sundresh and Justice Nongmeikapam Kotiswar Singh
- Date of Judgment: January 15, 2026