Case Name: SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION AND ANR.
Petition Number: MA NO. 2034 of 2022 in MA NO. 1849 of 2021 in SLP (CRL.) NO. 5191 of 2021.
Citation: 2026 INSC 115
Date of Judgement: 15.01.2026
Hon’ble Judges/Coram: HON’BLE MR. JUSTICE M.M. SUNDRESH & HON’BLE MR. JUSTICE NONGMEIKAPAM KOTISWAR SINGH.
BACKGROUND: For several years, the Supreme Court has been dealing with the issue of unnecessary arrests, where arrest is not even necessary for investigation.
In 2023, the BNSS came into force and Section 35(3) of it replaced Section 41A of the CRPC, 1973. Under Section 35(3) of the BNSS, police are required to serve a notice asking the accused to appear instead of making an immediate arrest. The court clarified that an arrest can be made only if it is absolutely necessary and if all the legal conditions are met.
FACTS OF THE CASE:
The confusion arose because of different interpretations of Section 35(3) BNSS. Some judicial precedents such as- Chandrashekhar Bhimsen Naik v. State of Maharashtra suggested that even in offences punishable up to seven years, the police could directly arrest the accused after recording reasons.
This led to ambiguities on whether issuing a notice under Section 35(3) is mandatory or whether it could be avoided if the police believed arrest was necessary. Since such ambiguity directly affects the liberty of individuals under Article 21 of the Constitution, the Supreme Court was approached for further clarification.
ISSUES OF THE CASE:
- Whether issuance of a notice under Section 35(3) of the BNSS, 2023 is mandatory in all cases involving offences punishable with imprisonment up to seven years?
- Whether, in the absence of circumstances specified under Section 35(1)(b)(i) and (ii) of the BNSS, arrest by a police officer in such cases is legally justified?
ARGUMENTS PRESENTED:
The Amicus Curiae relied upon Arnesh Kumar v. State of Bihar and stated that arrest in offences punishable up to seven years is not automatic. Unless the conditions under Section 35(1)(b)(i) and (ii) of the BNSS are satisfied, the arrest would be illegal. It was contended that Section 35(3) BNSS creates a mandatory obligation to issue notice. This safeguard cannot be ignored by merely recording reasons for arrest.
On the other hand, the Union of India argued that Section 35(1)(b) of BNSS itself recognises exceptions where arrest is permissible, provided the police officer has reasons to believe that that the offence has been committed and arrest is necessary for purposes such as proper investigation. Hence, no further clarification is required for the same.
Section 35(3) applies only where arrest is not required. There is no inconsistency between the power to arrest and the obligation to issue notice. Treating notice as mandatory in every case would affect effective investigation.
COURT’S OPINION AND ANALYSIS:
The Supreme Court held that the word “may” in Section 35(1) shows that arrest is not mandatory, but discretionary. For arrest under Section 35(1)(b), strict compliance with the statutory conditions is required. Section 35(1)(b)(i) requires the police officer to have reasons to believe that the offence has been committed, and Section 35(1)(b)(ii) requires being sure about the necessity of arrest. Even where such conditions exist, arrest must not be made unless it is justified by recorded reasons.
The Court clarified that for offences punishable up to seven years, notice under Section 35(3) is mandatory. Once such notice is issued and complied with, Section 35(5) prohibits arrest unless fresh reasons arise which must be recorded in writing. Even non-compliance with notice does not automatically justify arrest. Arrest under Section 35(6) is an exception to be exercised only when absolutely necessary.
CONCLUSION:
The Court clarified that arrest is a discretionary tool which cannot be used arbitrarily as a tool of convenience. For offences punishable with imprisonment up to seven years, notice under Section 35(3) BNSS is the rule, and arrest under Section 35(6) read with Section 35(1)(b) is an exception to be exercised cautiously. This interpretation aligns with the legislative intent of the BNSS as well as the constitutional guarantee of personal liberty under Article 21.
