Arrest Exception, Not Rule For Offences Punishable Up To 7 Yrs; S.35(3) BNSS Notice Mandatory In Such Cases : Supreme Court

The Supreme Court held that serving of notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is mandatory by the police to accused persons alleged to have committed an offence punishable up to seven years of imprisonment. A bench of Justices MM Sundresh and N Kotiswar Singh said that no arrest could be made for offences which are punishable with less than 7 years' imprisonment unless the mandatory requirement of serving a notice under Section 35(3) of BNSS is complied with.The Court was considering the seminal issue - 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?.Arrest is discretionaryThe Court, in the course of its discussion, observed that an arrest, being an act done by a police officer in furtherance of an investigation, is "discretionary and optional" to be applied on the facts of a particular case.Section 35 of the BNSS provides for situations where a person may be arrested by a police officer, without a warrant.An arrest can be made only where the police officer forms a reason to believe under Section 35(1)(b)(i) of the BNSS that the accused has committed an offence, and further satisfies himself that custody is necessary under Section 35(1)(b)(ii) for at least one specified purpose—such as preventing the commission of further offences, facilitating a proper investigation, preventing tampering with evidence, protecting witnesses, or ensuring the accused's presence before the court, the court clarified. In other words, a valid arrest requires simultaneous compliance with Section 35(1)(b)(i) and the existence of at least one necessity condition under Section 35(1)(b)(ii). Moreover, even if the conditions under Section 35(1)(b) of BNSS are satisfied, there can't be a mandatory arrest, and police officer still may or may not decide to do so. “…it is amply clear that even if the conditions mentioned under Section 35(1)(b) of the BNSS, 2023 are in existence, there can be no mandatory arrest, as a police officer still may or may not decide to do so.”, the court said. Additionally, the police officers must record reasons in writing both for arresting an accused. Section 35(3) of the BNSS, 2023, states that instead of arresting an accused, the officer may serve a notice on the accused for appearance. This provision applies to all cognizable offences. However, the Court held that for offences punishable with imprisonment up to a period of 7 years , this provision will have to be read along with Section 35(1)(b) of the BNSS, 2023, and its proviso which mandates the furnishing of reasons, in writing, for both, making an arrest and when there is no requirement to do so. So long as a person served notice under Section 35(3) complies with it and appears, he cannot be arrested, as provided under Section 35(5).The Court observed : "we have no hesitation to hold that a 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."The following conclusions were drawn by the Court: "a. An 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, therefore, shall not be termed as mandatory. b. Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise. c. For effecting an arrest, qua an offence punishable with imprisonment up to 7 years, the mandate of Section 35(1)(b)(i) of the BNSS, 2023 along with any one of the conditions mentioned in Section 35(1)(b)(ii) of the BNSS, 2023 must be in existence. d. A notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule. e. Even if the circumstances warranting an arrest of a person are available in terms of the conditions mentioned under Section 35(1)(b) of the BNSS, 2023, the arrest shall not be undertaken, unless it absolutely warranted. f. Power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023, pursuant to a notice issued under Section 35(3) of the BNSS, 2023 is not a matter of routine, but an exception, and the police officer is expected to be circumspect and slow in exercising the said power."Also From Judgment: BNSS | Arrest Under S. 35(6) Must Be Based On Fresh Material, Not On Grounds In S.35(3) Notice : Supreme CourtCause Title: SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATIONCitation : 2026 LiveLaw (SC) 114Click here to download order

Arrest Exception, Not Rule For Offences Punishable Up To 7 Yrs; S.35(3) BNSS Notice Mandatory In Such Cases : Supreme Court

Yash Mittal

As a first rule, an accused must be served S.35(3) notice instead of being arrested in cases involving offences less than 7 years imprisonment.

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