The Supreme Court has reiterated that arrest should be the exception and not the rule in criminal cases. In a significant ruling clarifying the scope of police powers under the Bharatiya Nagarik Suraksha Sanhita (BNSS), the Court held that a notice under Section 35(3) BNSS must ordinarily be issued before arresting a person accused of offences punishable with imprisonment of up to seven years.
Supreme Court on Arrest Under BNS
A Bench of Justice MM Sundresh and Justice N Kotiswar Singh observed that arrest by a police officer is a matter of statutory discretion and not a mandatory step in investigation. The Court emphasised that the primary purpose of arrest is to facilitate investigation, not to punish or harass the accused.
The ruling came in Satender Kumar Antil vs. CBI, where the Court examined whether police are required to mandatorily issue a notice under Section 35(3) of the BNSS before making arrests in less serious offences.
Section 35(3) BNSS: Notice Is the Rule
The Court clearly held that issuing a Section 35(3) BNSS arrest notice is the general rule in cases involving offences punishable up to seven years. This notice requires the accused to appear before the police and cooperate with the investigation when arrest is not immediately necessary.
Even where circumstances under Section 35(1)(b) BNSS exist, the Court clarified that arrest should not be made unless it is absolutely warranted.s.
Arrest Must Be a Measure of Last Resort
The Supreme Court underlined that police officers must first form a reasoned belief that the accused has committed the offence and that the investigation cannot proceed without custody. Additionally, the officer must record written reasons justifying the arrest.
The Bench stressed that arrest cannot be used merely to question the accused or as a matter of routine convenience. Instead, the power of arrest must be exercised with caution and restraint.
Role of Police and Judicial Oversight
The Court noted that the wording of Section 35(1) of the BNSS uses the term “may arrest”, reinforcing that arrest is discretionary. Furthermore, once a notice under Section 35(3) BNSS is issued, arrest thereafter should remain an exception, not the norm.
This interpretation strengthens constitutional protections under Article 21, safeguarding personal liberty against arbitrary State action.
Impact of the Judgment
The ruling reinforces procedural safeguards for accused persons and sends a clear message to law enforcement agencies to adhere strictly to statutory requirements. By making Section 35(3) BNSS notice central to arrest decisions, the Supreme Court has reaffirmed that criminal procedure must balance effective investigation with individual liberty.
