The Supreme Court of India has delivered a landmark judgment clarifying arrest procedures under the new criminal code, establishing that prior notice to the accused is mandatory for offenses carrying imprisonment of up to seven years. This ruling provides crucial safeguards against arbitrary arrests and reinforces procedural protections for individuals facing criminal charges.
Mandatory Notice Requirement Under BNSS
In a significant interpretation of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Supreme Court has unequivocally stated that police officers must issue a notice under Section 35(3) of the code before arresting any person accused of offenses punishable with imprisonment up to seven years. The bench comprising Justices MM Sundresh and N Kotiswar Singh emphasized that this notice requirement represents the standard rule, not merely an optional procedural step.
Arrest Power as Discretionary, Not Mandatory
The court made a fundamental distinction regarding police powers, observing that the authority to arrest represents statutory discretion granted to aid investigation rather than an automatic or mandatory obligation. "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," the bench declared, establishing this as the normative procedure that must be followed.
Even when circumstances might technically justify an arrest under Section 35(1)(b) of the BNSS, the court clarified that "the arrest shall not be undertaken, unless it absolutely warranted." This creates a high threshold for actual arrest, prioritizing the notice mechanism as the primary procedural step.
Addressing Procedural Grey Areas
The ruling emerged from the court's examination of whether Section 35(3) notices must precede arrests in all cases, particularly those involving offenses punishable up to seven years. Senior Advocate Siddharth Luthra highlighted potential contradictions in the legal framework, noting that while the order makes notice issuance imperative, it simultaneously appears to permit arrests in the same category of offenses if "Reasons of Arrest" are properly recorded and validated.
Luthra submitted that this creates "a grey area regarding procedural compliance of Section 35(3) of the BNSS, 2023, by the police officer," referencing the Bombay High Court's judgment in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025) to illustrate the interpretive challenges facing law enforcement.
Clarifying Legal Conditions for Arrest
Additional Solicitor General Aishwarya Bhati contributed to the proceedings by asserting that established legal precedents have already settled that arrests in such cases are not automatic but require specific conditions to be met. The Supreme Court reinforced this position through detailed analysis of the statutory language.
The court pointed out that Section 35(1) of the BNSS employs the term "may" when referring to arrests without warrant, thereby establishing arrest power as "discretionary and not automated." This linguistic choice carries significant legal implications for how police discretion must be exercised.
Interpreting Section 35 Requirements
In its comprehensive interpretation, the Supreme Court explained that "to attract the power of arrest under Section 35(1)(b) of the BNSS, 2023, the conditions mentioned thereunder ought to be complied with scrupulously." The judgment emphasized that Sections 35(1)(b)(i) and 35(1)(b)(ii) must be read together, with compliance to Section 35(1)(b)(i) representing "a sine qua non in all cases of arrest."
The court elaborated on these requirements: "Section 35(1)(b)(i) of the BNSS, 2023 speaks about the 'reason to believe' on the part of the police officer. Such a reason to believe should be formed on the basis of a complaint, information, or suspicion that the person concerned has committed the offence. However, this alone would not suffice."
Multiple Safeguards Against Arbitrary Arrest
The judgment established that police must satisfy at least one condition under Section 35(1)(b)(ii) in addition to having reasonable belief under Section 35(1)(b)(i). "It is not required that all the conditions mentioned under Section 35(1)(b)(ii) of the BNSS, 2023 should be available, but only the existence of one of them that is required," the court clarified, providing practical guidance for law enforcement.
After determining arrest necessity, "a police officer is bound to record his reasons either for arrest, as provided for under Section 35(1)(b) of the BNSS, 2023, or for merely issuing a notice under Section 35(3) of the BNSS, 2023." The court characterized Section 35(1)(b) as creating "an exception, with its inbuilt safeguards" to the general rule requiring prior notice.
This landmark ruling strengthens procedural protections in India's criminal justice system by establishing clear guidelines that prioritize notice over arrest for less serious offenses, while maintaining necessary police discretion for cases where immediate detention proves absolutely warranted. The decision represents a significant step toward balancing law enforcement needs with individual liberties under the new criminal code framework.
