Police arrest is discretionary, notice mandatory for offences up to seven years: Supreme Court

The Supreme Court has recently ruled that a prior notice to the accused person is mandatory for offenses that are punishable with imprisonment of up to seven years. The Supreme Court ruled that police officers must issue a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) before arresting a person, Bar&Bench reported.

A bench comprising Justices MM Sundresh and N Kotiswar Singh observed that the power of arrest is only a statutory discretion given to police to aid investigation and should not be treated as mandatory.

The court said, “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.”

“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,” the bench continued.

The ruling came as the court examined if issuing a notice under Section 35(3) of the BNSS was “required to be given before arrest in all cases and in particular in the cases where the offence is punishable up to seven years, when the arrest of an accused is necessary.”

Senior Advocate Siddharth Luthra argued that the police cannot arrest a person unless some particular conditions under the BNSS are reached in those cases in which are punishable up to seven years.

“On the one hand, the order makes it imperative for the police officer to issue a notice under Section 35(3) of the BNSS, 2023 to the accused, qua an offence punishable with imprisonment of up to 7 years. On the other hand, it appears to permit the police officer to effect an arrest, in the very same category of offences, provided that “Reasons of Arrest” are recorded and valid," he said.

This, he submitted, creates a grey area in the procedural compliance of Section 35(3), referring to the Bombay High Court’s judgment in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025).

"It is submitted that this creates a grey area regarding procedural compliance of Section 35(3) of the BNSS, 2023, by the police officer,” Luthra said as he referred to the judgment of the Bombay High Court in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025).

Additional Solicitor General Aishwarya Bhati said the legal position has already been settled by earlier rulings and that arrest in such cases is not automatic, but can be made only when the legal conditions are met.

The Supreme Court pointed out that Section 35(1) of the BNSS uses the wod “may” when it refers to arrests sans a warrant, making the power of arrest “discretionary and not automated.”

"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. Section 35(1)(b)(i) and Section 35(1)(b)(ii) of the BNSS, 2023 must be read together, meaning thereby that compliance with Section 35(1)(b)(i) of the BNSS, 2023 is a sine qua non in all cases of arrest," the Court added.

It continued: “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. Additionally, any one of the conditions mentioned under Section 35(1)(b)(ii) of the BNSS, 2023 must also be satisfied. In other words, 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.”

“After being satisfied that there is a necessity of arrest, 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. Section 35(1)(b) of the BNSS, 2023, thus, carves out an exception, with its inbuilt safeguards.”