2026 (2) TMI 466 - SC - Indian Laws

BNSS notice requirement and limits on arrest: notice is the rule; arrest requires objective necessity and new materials after notice

For offences punishable up to seven years under the BNSS, 2023, issuance of a notice under Section 35(3) is the norm and arrest under Sections 35(1)(b) ... Mandatory issuance of notice u/s 35(3), for offences punishable up to seven years - discretionary power of arrest u/s 35(1)(b) - requirement of 'reason to believe' and recorded satisfaction for necessity of arrest - notice as the rule and arrest as the exception - limitations on arrest after issuance of notice u/s 35(6) - safeguards of Article 21 in arrest and investigation - Whether in the absence of circumstances under Sections 35(1)(b)(i) and 35(1)(b)(ii) of the BNSS, 2023 existing, is an arrest by a police officer, qua an offence punishable with imprisonment up to 7 years, legally justified? - HELD THAT:- While making an arrest under Section 35(6) of the BNSS, 2023, after the stage of issuing a notice seeking presence under Section 35(3) of the BNSS, 2023, the circumstances and factors that were in existence at the time of issuing the said notice shall not be taken into consideration by a police officer while making an arrest subsequently. In other words, for effecting an arrest under Section 35(6) of the BNSS, 2023, it must be based upon materials and factors which were not available with the police officer at the time of issuing a notice under Section 35(3) of the BNSS, 2023. Therefore, the power of arrest under Section 35(6) of the BNSS, 2023 is to be exercised rather sparingly, only under circumstances as aforementioned. The power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023 must be interpreted as a strict objective necessity, and not a subjective convenience for the police officer. It does not mean the police officer can arrest to simply ask questions. However, it means that the police officer must satisfy himself that the investigation, qua an offence punishable with imprisonment up to 7 years, cannot proceed effectively without taking the concerned individual into custody. Any interpretation to the contrary would clearly frustrate the purpose and legislative intent of Sections 35(1)(b) and Sections 35(3) to 35(6) of the BNSS, 2023. An arrest by a police officer is a mere statutory discretion which facilitates him to conduct proper investigation, in the form of collection of evidence and, therefore, shall not be termed as mandatory. Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise. For effecting an arrest, qua an offence punishable with imprisonment up to 7 years, the mandate of Section 35(1)(b)(i) of the BNSS, 2023 along with any one of the conditions mentioned in Section 35(1)(b)(ii) of the BNSS, 2023 must be in existence. 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. Issues: (i) Whether notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 must be mandatorily issued in cases of offences punishable with imprisonment up to seven years; (ii) Whether, in the absence of circumstances under Sections 35(1)(b)(i) and 35(1)(b)(ii) of the Bharatiya Nagarik Suraksha Sanhita, 2023, an arrest by a police officer in such offences is legally justified.Issue (i): Whether notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 must be mandatorily issued in cases of offences punishable with imprisonment up to seven years.Analysis: Section 35(3) provides that where arrest is not required under subsection (1), a police officer shall issue a notice directing the person to appear. Sections 35(4) and 35(5) impose duties on the recipient to comply and provide that compliance prevents arrest except where reasons for arrest are recorded. The statutory scheme links subsection (3) with subsection (1)(b) and the proviso requiring recording of reasons when arrest is not made. Prior precedent interpreting pari materia provisions (Section 41-A/41 CrPC) emphasises issuance of notice as the normal procedure for offences punishable up to seven years and treats arrest as an exception subject to recorded satisfaction of specified conditions.Conclusion: Notices under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 are the rule for offences punishable with imprisonment up to seven years and therefore shall ordinarily be issued.Issue (ii): Whether, in the absence of circumstances under Sections 35(1)(b)(i) and 35(1)(b)(ii) of the Bharatiya Nagarik Suraksha Sanhita, 2023, an arrest by a police officer in such offences is legally justified.Analysis: Section 35(1)(b)(i) requires a police officer to have a reason to believe on the basis of complaint, information or suspicion that the person committed the offence; Section 35(1)(b)(ii) requires satisfaction that arrest is necessary for specified purposes (e.g., proper investigation, preventing tampering). The two sub-clauses must be read together so that both the reason to believe and the satisfaction as to necessity are preconditions to arrest. The statutory text uses discretionary language ('may') and mandates recording reasons in writing both for arrest and for not arresting. Precedent and constitutional safeguards (Article 21) require that arrest be sparingly exercised and justified on objective necessity, not mere convenience.Conclusion: In the absence of circumstances satisfying Sections 35(1)(b)(i) and 35(1)(b)(ii), arrest is not legally justified; arrest is an exception and requires recorded, objective satisfaction of necessity.Final Conclusion: The legal position is that for cognizable offences punishable with imprisonment up to seven years, issuing a notice under Section 35(3) is the default rule and arrest under Sections 35(1)(b) and 35(6) is an exception which may be resorted to only when objectively necessary and after recording reasons in writing; compliance with these safeguards is required to protect personal liberty under Article 21.Ratio Decidendi: For offences punishable with imprisonment up to seven years, Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 mandates issuance of notice as the norm, and arrest under Section 35(1)(b) read with Section 35(6) is permissible only as a strictly necessary exception upon an objectively recorded satisfaction of the conditions in Sections 35(1)(b)(i) and 35(1)(b)(ii).