Mandatory Notice Issuance for Offences Punishable Up to 7 Years, Arrests Only as Exceptions
In a significant ruling dated January 15, 2026, the Supreme Court of India, comprising Justices M.M. Sundresh and Nongmeikapam Kotiswar Singh, has provided clarity on the arrest procedures under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023). The court emphasized the mandatory issuance of a notice under Section 35(3) for offences punishable with imprisonment up to 7 years, underscoring that arrests should be considered an exception rather than the norm.
The bench addressed the issue of whether notices under Section 35(3) must be mandatorily issued in all cases involving offences with potential imprisonment of up to 7 years. The Supreme Court reiterated that a notice is a prerequisite before considering arrest, aligning with the principles laid out in previous judgments such as Arnesh Kumar v. State of Bihar.
The ruling further elaborated on the discretionary nature of arrests. Even if conditions under Section 35(1)(b) are met, the decision to arrest must be backed by valid, recorded reasons. The court highlighted that the power of arrest should not be exercised mechanically, ensuring the protection of individual liberty while facilitating proper investigation.
The Supreme Court also clarified that compliance with Section 35(1)(b)(i) and any one of the conditions under Section 35(1)(b)(ii) is required for an arrest related to offences punishable with imprisonment up to 7 years. The court emphasized that arrest is not a tool of convenience but a necessity, only to be used when crucial for investigation.
This judgment comes in the backdrop of pending deliberations in the High Court of Bombay regarding the mandatory nature of notices under the BNSS, 2023. The Supreme Court's decision seeks to harmonize the provisions of Sections 35(1)(b) and 35(3) to 35(6) of the BNSS, 2023, ensuring a balance between individual liberty and the need for effective law enforcement.
Bottom Line:
Issuance of notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 is mandatory for offences punishable with imprisonment up to 7 years, while arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023 is a clear exception and must be backed by valid, recorded reasons.
Statutory provision(s): Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 35(3), 35(1)(b), 35(6)
Satender Kumar Antil v. Central Bureau Of Investigation, (SC) : Law Finder Doc id # 2849109
