Notice before arrest under BNSS is the normal rule, while custody requires recorded necessity and statutory safeguards.

In offences punishable with imprisonment up to seven years under the Bharatiya Nagarik Suraksha Sanhita, 2023, notice under Section 35(3) is the ordinary course and should normally be issued before arrest. Arrest under Section 35(1)(b) is permissible only when the officer has reason to believe and records the statutory necessity for custody; it is not automatic. Where a notice is issued and complied with, arrest requires recorded reasons showing continued necessity. Where notice is not complied with, arrest still depends on material justifying custody rather than routine discretion.

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Issues: (i) Whether notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 are mandatorily required in cases involving offences punishable with imprisonment up to seven years; (ii) Whether, in the absence of the conditions in Section 35(1)(b)(i) and Section 35(1)(b)(ii), an arrest in such cases is legally justified.

Issue (i): Whether notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 are mandatorily required in cases involving offences punishable with imprisonment up to seven years

Analysis: Section 35(3) is a safeguard provision meant to operate where arrest is not required under Section 35(1). In cases punishable with imprisonment up to seven years, the provision has to be read harmoniously with Section 35(1)(b), which makes arrest discretionary and conditions it on both reason to believe and satisfaction as to necessity. The statutory scheme shows that issuance of notice is the normal course, and the notice requirement cannot be treated as optional merely because arrest power exists in exceptional situations.

Conclusion: Yes. A notice under Section 35(3) is the rule in such cases.

Issue (ii): Whether, in the absence of the conditions in Section 35(1)(b)(i) and Section 35(1)(b)(ii), an arrest in such cases is legally justified

Analysis: Arrest under Section 35(1)(b) requires the simultaneous existence of reason to believe and at least one statutory necessity under clause (ii), and even then arrest is not automatic. Where a notice has been issued and complied with, Section 35(5) prohibits arrest unless recorded reasons show that arrest is still necessary. If notice is not complied with, arrest remains a matter of discretion and must be based on materials justifying the need for custody, not on routine or subjective convenience.

Conclusion: No. In the absence of the statutory conditions, arrest is not legally justified.

Final Conclusion: The statutory scheme under Section 35 treats notice as the ordinary course and arrest as a narrowly confined exception, controlled by recorded necessity and constitutional safeguards of liberty.

Ratio Decidendi: In offences punishable with imprisonment up to seven years, arrest is not mandatory; it is permissible only when the police officer satisfies the statutory preconditions of reason to believe and necessity, and notice under Section 35(3) ordinarily governs the process unless recorded reasons justify the exceptional course of arrest.

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