BNSS | Arrest Under S. 35(6) Must Be Based On Fresh Material, Not On Grounds In S.35(3) Notice : Supreme Court

While affirming that issuance of a notice under Section 35(3) of the BNSS is mandatory for offences punishable with imprisonment up to seven years, the Supreme Court clarified that an arrest under Section 35(6) can be made even after such notice only based on fresh materials that were not available to the police officer at the time the Section 35(3) notice was issued.

Section 35(6) BNSS empowers the police to arrest a person who fails to comply with Section 35(3) BNSS notice, i.e., to appear before the police officer or fails to identify himself to the police.

"While making an arrest under Section 35(6) of the BNSS, 2023, after the stage of issuing a notice seeking presence under Section 35(3) of the BNSS, 2023, the circumstances and factors that were in existence at the time of issuing the said notice shall not be taken into consideration by a police officer while making an arrest subsequently. In other words,for effecting an arrest under Section 35(6) of the BNSS, 2023, it must be based upon materials and factors which were not available with the police officer at the time of issuing a notice under Section 35(3) of the BNSS, 2023,” the Court clarified.

The Court cautioned that "the power of arrest under Section 35(6) of the BNSS, 2023 is to be exercised rather sparingly."

It may be noted that in Satender Kumar Antil v. CBI (II), 2025 LiveLaw (SC) 751, a bench comprising Justices M.M. Sundresh and N. Kotiswar Singh held that non-compliance with a notice under Section 35(3) of the BNSS does not automatically justify arrest. The Court emphasised that arrest is a measure of last resort, to be exercised by the investigating agency only after applying its mind to the necessity of arrest. However, the bench did not examine whether, while effecting an arrest under Section 35(6) of the BNSS, the police officer is required to rely on fresh material or factors distinct from those considered at the stage of issuing the Section 35(3) notice.

This is what precisely clarified by the bench in this ruling i.e., Satender Kumar Antil v. CBI (III), holding that “while making an arrest under Section 35(6) of the BNSS, 2023, after the stage of issuing a notice seeking presence under Section 35(3) of the BNSS, 2023, the circumstances and factors that were in existence at the time of issuing the said notice shall not be taken into consideration by a police officer while making an arrest subsequently.”

Also, the court issued a direction to the police officials that their “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.”

Cause Title: SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION

Citation : 2026 LiveLaw (SC) 114

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