Arrest Is Not Routine: SC Reaffirms Liberty Under Section 35 of the BNSS

In Satender Kumar Antil v. Central Bureau of Investigation (2026 INSC 115), the Supreme Court has once again stepped in to recalibrate the balance between investigative authority and personal liberty, this time under the framework of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The issue before the Court was narrow in formulation yet profound in implication: whether issuance of notice under Section 35(3) of the BNSS is mandatory in all cases involving offences punishable with imprisonment up to seven years, and whether arrest can nonetheless be effected merely by recording reasons.

The Court’s answer, rooted in constitutional principle and statutory interpretation, is clear notice is the rule; arrest is the exception.

The controversy arose in the backdrop of differing understandings regarding the interplay between Section 35(1)

(b), which sets out the conditions under which a police officer may arrest without warrant, and Section 35(3) to (6), which introduces the mechanism of notice of appearance.

The Amicus Curiae contended that in offences punishable up to seven years, the mandate to issue notice cannot be bypassed by simply recording “reasons for arrest,” unless the stringent conditions under Section 35(1)(b) are strictly satisfied.

What Court Said?

The Court examined this contention against the settled jurisprudence in Arnesh Kumar v. State of Bihar and its earlier decision in Satender Kumar Antil (2022), both of which had already cautioned against mechanical arrests in such categories of offences.

The judgment proceeds from first principles. Investigation, the Court notes, is fundamentally a process of evidence collection culminating in the formation of an opinion as to whether a charge-sheet should be filed. Arrest is only one of the incidental powers available in aid of investigation; it is neither synonymous with investigation nor indispensable to it.

By employing the word “may” in Section 35(1), the legislature has consciously preserved discretion.

The existence of power to arrest does not translate into an obligation to exercise it.

The Court reiterates the long-standing position from Joginder Kumar that the justification for arrest must be distinct from the mere legality of arrest.

No person can be deprived of liberty merely because the statute permits it.

For offences punishable with imprisonment up to seven years,

Section 35(1)(b) imposes a two-fold requirement.

First, the police officer must have “reason to believe,” on the basis of complaint, kinformation, or suspicion, that the person has committed the offence.

Second, and equally essential, the officer must be satisfied that arrest is necessary for one of the enumerated purposes preventing further offence,

1 .ensuring proper investigation,

2 . preventing tampering with evidence,

3 .preventing inducement or threat to witnesses, or

4 .securing presence before court.

These conditions are cumulative in structure: the existence of reason to believe alone is insufficient; at least one necessity condition must also be satisfied.

Even then, the officer is required to record reasons in writing, whether for making the arrest or for refraining from it.

It is in this statutory setting that Section 35(3) assumes central importance.

The Court holds that where arrest is not required under Section 35(1), issuance of notice directing appearance is mandatory. In offences punishable up to seven years, this provision operates as the normative starting point.

Once a notice issued and the person complies with its terms, Section 35(5) creates an implied prohibition against arrest.

Any subsequent arrest can only be justified if the police officer forms an independent opinion, based on recorded reasons, that custody has become necessary.

The Court makes it explicit that the power under Section 35(6) is not to be exercised routinely; it is an exception triggered by objective necessity, not subjective convenience.

Significantly, the Court clarifies that even non-compliance with notice does not ipso facto mandate arrest.

The discretion remains with the investigating agency, which must still assess whether arrest is truly required. Moreover, if arrest is sought after issuance of notice,

it must be founded on materials or circumstances that were not available at the time of issuing the notice. Earlier grounds cannot be retrospectively invoked to justify deprivation of liberty.

This interpretation reinforces the legislative intent of embedding safeguards within the architecture of Section 35.

The constitutional underpinning of the judgment is unmistakable.

The Court anchors its reasoning in Article 21, emphasising that the procedural framework of Section 35 is not a mere technicality but a substantive guarantee against arbitrary deprivation of liberty.

To construe the provision as permitting routine arrest would be to dilute the fundamental right it seeks to protect.

The procedural safeguards, therefore, must be complied with in letter and spirit, and Magistrates are expected to scrutinise arrests with vigilance rather than mechanical approval.

In its concluding formulation, the Court distils the governing principles: arrest under Section 35 is a discretionary power aimed at facilitating investigation; notice under Section 35(3) is the rule in offences punishable up to seven years; arrest under Section 35(6) read with Section 35(1)(b) is an exception to be invoked sparingly; and necessity must be strict, objective, and demonstrable.

The power of arrest, the Court underscores, cannot be used as a convenient tool for interrogation or as a reflexive response to registration of an FIR.

The judgment thus continues the jurisprudential trajectory begun in Arnesh Kumar, ensuring that the transition from the Code of Criminal Procedure to the BNSS does not erode established safeguards.

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Case Details:

Satender Kumar Antil v. Central Bureau of Investigation & Anr., MA No. 2034 of 2022 in MA No. 1849 of 2021 in SLP (Crl.) No. 5191 of 2021 (with MA No. 2035 of 2022), Supreme Court of India, decided on 15 January 2026 (M.M. Sundresh & N. Kotiswar Singh, JJ.), 2026 INSC 115.

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