SC: Police must issue notice before arrest in offences punishable up to 7 years

New Delhi: The Supreme Court has laid down a definitive procedural framework governing police arrests under the Bharatiya Nagarik Suraksha Sanhita, 2023, ruling that in cases involving offences punishable with imprisonment of up to seven years, issuance of a notice under Section 35(3) of the BNSS must ordinarily precede any arrest, while custody must remain an exceptional measure justified by strict statutory necessity. In a detailed judgment that clarifies the contours of police discretion, a bench of Justices MM Sundresh and N Kotiswar Singh held that arrest is neither automatic nor routine, and can be resorted to only when specific legal conditions are cumulatively satisfied and properly documented in writing.

The court was adjudicating the seminal question of whether notices under Section 35(3) of the BNSS are mandatory in all cases involving offences punishable with up to seven years’ imprisonment. Answering this in the affirmative, it ruled that such notice is the governing rule, while arrest under Section 35(6) read with Section 35(1)(b) is a narrowly carved exception.

Interpreting Section 35 of the BNSS, which empowers police to arrest without a warrant in certain situations, the court underscored that the power is discretionary and intended solely to facilitate effective investigation. It clarified that a lawful arrest requires simultaneous compliance with two conditions under Section 35(1)(b). First, under Section 35(1)(b)(i), the officer must have reason to believe that the accused has committed the offence. Second, under Section 35(1)(b)(ii), custody must be necessary for at least one specified purpose, such as preventing further offences, ensuring proper investigation, preventing tampering with evidence, protecting witnesses, or securing the accused’s presence before court.

Even where these conditions exist, the court made it clear that arrest does not become mandatory. Police officers must independently assess whether taking a person into custody is truly indispensable, and must record reasons in writing both for making an arrest and for deciding against it.

Section 35(3) of the BNSS allows police to serve a notice directing the accused to appear instead of arresting them. The court held that for offences punishable with up to seven years, this provision must be read with Section 35(1)(b) and its proviso, which mandates written reasons in all cases. Once a person complies with such notice and appears before the police, Section 35(5) bars their arrest.

Articulating the legal position, the bench observed, “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.” It further added that “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.”

During proceedings, Senior Advocate Siddharth Luthra, appearing as amicus curiae, referred to the Bombay High Court ruling in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025), contending that it created ambiguity by seemingly allowing arrest in such cases if reasons were recorded, even while requiring notice. Additional Solicitor General Aishwarya Bhati maintained that the law was already settled, reiterating that arrest is neither automatic nor routine.

Reinforcing its stance, the court stated that police cannot arrest merely to question an accused. “The police officer must satisfy himself that the investigation, qua an offence punishable with imprisonment up to 7 years, cannot proceed effectively without taking the concerned individual into custody,” it held.Summing up, the court concluded that arrest is a statutory discretion, must be preceded by careful assessment of necessity, and that the power under Section 35(6) following a notice under Section 35(3) is not a matter of routine but an exception to be exercised with caution.

with agency inputs