Arrest: The Exception, Not The Rule, For Offences Punishable Up To Seven Years – Notice Under Section 35(3) BNSS

Posted On - 20 April, 2026 • By - Gaurav Singh Gaur

Introduction

The tension between personal liberty and police powers of arrest has long occupied a central place in Indian criminal jurisprudence. Under the erstwhile Code of Criminal Procedure, 1973 (“CrPC”), Sections 41 and 41A represented the statutory framework governing arrest and notice of appearance, with the Supreme Court consistently cautioning against routine arrests in cases involving lesser offences.

The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) marks a significant legislative shift. Section 35 of the BNSS, which corresponds to and substantially reworks Sections 41 and 41A CrPC, codifies stricter safeguards regulating arrest.

In Satender Kumar Antil v. Central Bureau of Investigation (order dated January 15, 2026)1, the Supreme Court reaffirmed and strengthened this jurisprudence, holding that in offences punishable with imprisonment up to seven years, issuance of notice under Section 35(3) BNSS is mandatory, and arrest under Section 35 is an exception reserved for demonstrably necessary cases. This article examines the statutory framework, judicial evolution, and implications of this ruling.

Statutory And Doctrinal Framework

From Section 41 & 41A CrPC to Section 35 BNSS

Section 41 CrPC conferred wide powers on police officers to arrest without warrant in cognisable offences. Concerns regarding misuse of this power led to the introduction of Section 41A, which required issuance of a notice of appearance in cases punishable with imprisonment up to seven years, unless arrest was justified on specified grounds.

In Arnesh Kumar v. State of Bihar (2014)2, the Supreme Court imposed strict conditions on arrest, mandating compliance with Section 41 and 41A and warning of departmental action for violations. This position was further reinforced in Satender Kumar Antil v. CBI (2021/2022), where the Court emphasised that arrest should not be routine and that liberty must be prioritised.

Section 35 BNSS builds upon and strengthens this framework. Its key features include:

  • Section 35(1): Permits arrest in cognisable offences, but for offences punishable up to seven years, arrest is conditional upon:
    • existence of reason to believe regarding involvement; and
    • satisfaction of at least one necessity condition (such as preventing further offence, ensuring proper investigation, preventing tampering of evidence, or securing presence).
  • Section 35(3): Mandates issuance of a notice of appearance where arrest is not required under Section 35(1).
  • Section 35(5): Provides that compliance with such notice ordinarily precludes arrest for that offence, subject to recorded reasons.
  • Section 35(6): Permits arrest upon non-compliance with notice, but only where the police officer records reasons demonstrating necessity.

The provision must be read in light of Article 21 of the Constitution, which requires that any deprivation of personal liberty be just, fair, and reasonable.

Judicial Standards Governing Arrest

The Supreme Court has consistently held that arrest is not to be exercised mechanically:

  • Joginder Kumar v. State of U.P. (1994): Arrest must be justified by necessity, not merely lawful authority.
  • D.K. Basu v. State of West Bengal (1997): Established procedural safeguards to prevent abuse of arrest powers.
  • Arnesh Kumar v. State of Bihar (2014): Made compliance with statutory safeguards mandatory and subject to judicial scrutiny.

Section 35 BNSS effectively codifies these constitutional principles by prioritising necessity, proportionality, and accountability.

The 2026 Supreme Court Ruling

Facts

The case arose in the context of a bail application in a CBI corruption matter. The appellants contended that despite the offence being punishable with a maximum sentence of seven years, they were arrested without issuance of notice under Section 35(3) BNSS. The High Court denied bail, prompting an appeal before the Supreme Court.

Issues

  1. Whether issuance of notice under Section 35(3) BNSS is mandatory in all cases involving offences punishable up to seven years.
  2. Whether non-compliance with such notice automatically justifies arrest under Section 35(6).
  3. Whether arrest can be justified solely on the basis of material available prior to issuance of notice.

Court’s Analysis and Findings

The Supreme Court adopted a rights-oriented interpretation of Section 35, harmonising it with Article 21.

  • Mandatory Nature of Notice: The Court unequivocally held that issuance of notice under Section 35(3) is mandatory in cases involving offences punishable up to seven years, unless the conditions justifying arrest under Section 35(1) are clearly satisfied at the outset.
  • It rejected any interpretation that would allow police to bypass notice by directly invoking Section 35(1), emphasising that Sections 35(3)–(6) operate as essential procedural safeguards.
  • Limits on Arrest under Section 35(6):Non-compliance with notice does not automatically authorise arrest. The Court clarified that arrest remains discretionary, not automatic, the police must independently assess necessity; and the reasons must be recorded in writing, demonstrating why arrest is required.
  • Requirement of Fresh Justification: Significantly, the Court held that an arrest subsequent to issuance of notice must be based on fresh or additional circumstances, and cannot rely solely on grounds that existed at the time of issuing notice.

Principles Summarised

The Court distilled the legal position as follows:

  1. Arrest is not mandatory but discretionary.
  2. Necessity is the governing test for arrest.
  3. For offences punishable up to seven years, both threshold satisfaction (Section 35(1)(b)(i)) and necessity conditions (Section 35(1)(b)(ii)) must be met.
  4. Issuance of notice under Section 35(3) is the default rule.
  5. Even where conditions for arrest exist, custody must be avoided unless indispensable.
  6. Invocation of Section 35(6) should be exceptional and justified with recorded reasons.

Interplay With Prior Jurisprudence

The ruling builds upon earlier decisions:

  • Satender Kumar Antil (2022): Encouraged non-custodial investigation and rationalised bail practices.
  • Arnesh Kumar (2014): Established mandatory safeguards against unnecessary arrest.
  • Joginder Kumar3 and D.K. Basu4: Anchored arrest jurisprudence in constitutional protections.

The Court also endorsed the approach adopted by the Bombay High Court in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2024)5, thereby ensuring uniform application of Section 35 across jurisdictions.

Conclusion

The Supreme Court’s January 2026 ruling represents a decisive shift towards liberty-centric criminal procedure under the BNSS. It firmly establishes that for offences punishable up to seven years:

  • Notice is the rule; arrest is the exception;
  • Arrest must be justified by necessity and recorded reasons; and
  • Police discretion is subject to constitutional and statutory discipline.

By embedding the principles of Arnesh Kumar and Satender Kumar Antil within the BNSS framework, the Court has strengthened procedural safeguards and clarified the operational contours of Section 35. The decision provides critical guidance to law enforcement, courts, and practitioners, and reinforces the centrality of personal liberty in criminal justice administration.

  1. Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51 ↩︎
  2. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 ↩︎
  3. Joginder Kumar v. State of U.P., (1994) 4 SCC 260 ↩︎
  4. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 ↩︎
  5. Chandrashekhar Bhimsen Naik v. State of Maharashtra 2024 ↩︎