TaxTMI 
TaxTMI 
2026 (2) TMI 466
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.... Parihar, Adv., Mr. Santosh Ramdurg, Adv., Mr. Rajesh singh Chavhan, Adv., Mr. Shreekant Neelappa Terdal, AOR, Mr. Arvind Kumar Sharma, AOR, Mr. Mahesh Agarwal, Adv., Mr. Ankur Saigal, Adv., Mr. Anshuman Srivastava, Adv., Mr. Shashwat Singh, Adv., Mr. E. C. Agrawala, AOR, Mr. Abhimanyu Tewari, AOR, Mr. Pukhrambam Ramesh Kumar, AOR, Mr. Karun Sharma, Adv., Ms. Anupama Ngangom, Adv., Ms. Rajkumari Divyasana, Adv., Mr. Aravindh S., AOR, Ms. Jyotika Sharma, Adv., Mr. Anando Mukherjee, AOR, Mr. Shwetank Singh, Adv., Mr. Utkarsh Anand, Adv., Mr. Malak Manish Bhatt, AOR, Mr. Amit Gupta, AOR, Mr. Amit Gupta, Adv., Ms. Muskan Nagpal, Adv., Mr. Kshitij Vaibhav, Adv., Ms. Swati Ghildiyal, AOR, Ms. Deepanwita Priyanka, Adv., Ms. Neha Singh, Adv., Mr. Rishi Yadav, Adv., Mr. Sudarshan Singh Rawat, AOR, Ms. Saakshi Singh Rawat, Adv., Mr. Sunny Sachin Rawat, Adv., Mr. Akshay Amritanshu, AOR, Mr. Sartha Srivastava, Adv., Mr. Nikhil Jain, AOR, Mr. Arjun Garg, AOR, Mr. Saaransh Shukla, Adv., Ms. Muskan Bensla, Adv., Mr. Shaurya Sahay, AOR, Mr. Aman Jaiswal, Adv., Ms. Palak Mathur, Adv., Mr. Abhishek Singh, AOR, Mr. Sabarish Subramanian, AOR, Mr. Aditya Vaibhav Singh Ga, Adv., Mr. Harmeet Singh Ruprah....
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....Jagat Joshi, Adv., Mr. Astik Gupta, Adv., Ms. Akanksha Tomar, Adv., Ms. Astha Sharma, AOR, Ms. Nidhi Mittal, AOR, Mr. Shishir Kumar Saxena, Adv., Mr. R.n. Pareek, Adv., Mr. Ankur Parihar, Adv., Mr. R.d. Maurya, Adv., Mr. Praveen Swarup, AOR, Mr. Avijit Mani Tripathi, AOR, Mr. T.k. Nayak, Adv., Ms. Marbiang Khongwir, Adv., Mr. Sameer Abhyankar, AOR, Mr. Rahul Kumar, Adv., Mr. Aakash Thakur, Adv., Mr. Vishal Prasad, AOR, Ms. Asmita Singh, AOR, Ms. Asmita Singh, Adv., Ms. Ankita Makan, Adv., Mr. Kaushik Choudhury, AOR, Mr. Debojit Borkakati, AOR, Ms. Pallavi Langar, AOR, Ms. Pragya Bhagel, Adv., Mr. Sujeet Kumar Chaubey, Adv., Mr. Nirnimesh Dube, AOR, Mr. Somesh Chandra Jha, AOR, M/S. Arputham Aruna And Co, AOR, Mr. R. Ayyam Perumal, AOR, Mr. Yashvardhan, Adv., Mr. Apoorv Shukla, AOR, Ms. Prabhleen A. Shukla, Adv., Mr. Aman Panwar, Adv., Mr. Mudit Gupta, AOR, Mr. Akash Panwar, Adv., Mr. Abhinav Kumar, Adv., Mr. Manav Kaushik, Adv., Mr. Ashish Batra, AOR, Mr. Ankur Prakash, AOR, Ms. K. Enatoli Sema, AOR, Mr. Amit Kumar Singh, Adv., Ms. Chubalemla Chang, Adv., Mr. Prang Newmai, Adv., Ms. Yanmi Phazang, Adv., Mr. Rahul Gupta, AOR, Mr. Sarad Kumar Singhania, AOR, Ms. Rooh-e-hina Dua, AOR,....
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....e notice, in terms of sub section (5) of Section 35, it was not open for the Investigating Officer to arrest him unless by reasons recorded, he express the opinion that the accused ought to be arrested. It is only if the Petitioner would have failed to comply with the terms of notice or unwilling to identify himself, in such case subject to such orders, as may have been passed by a competent Court, the arrest could have been effected. The directions issued in Arnesh Kumar, were made applicable to all cases where the offence is punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years, with or without fine. Emphasizing upon unnecessary arrest of the accused and his detention by the Magistrate in a casual and mechanical manner, the direction was issued that all State Governments shall instruct its Police Officers not to arrest mechanically, and before effecting an arrest, to be satisfied about the necessity of arrest under the parameters laid down flowing from Section 41 of the Code of 1973. It was, therefore, directed that the Police Officers shall forward a checklist duly filled in furnishing the reasons and material which necess....
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....cus that this Court may consider clarifying whether notices under Section 35(3) of the BNSS, 2023 are to be mandatorily issued in all cases, qua an offence punishable with imprisonment up to 7 years, thereby settling the position of law regarding the interplay between the mandate of notice and the discretion to arrest. SUBMISSIONS ON BEHALF OF THE LEARNED ASG 11. At the outset, Ms. Aishwarya Bhati, learned ASG submitted that the clarification sought for by the learned Amicus regarding the mandatory nature of notices under Section 41-A of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC, 1973"), which is pari materia to Section 35 of the BNSS, 2023, has already been conclusively settled by this Court in Arnesh Kumar (supra) and Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51. 12. The following paragraphs in the aforesaid judgments are reproduced for convenience: Arnesh Kumar vs. State of Bihar & Anr, (2014) 8 SCC 273 "7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may exte....
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.... notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice." The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specif....
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....ing that notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub-clause (1)(b)(i) of Section 41 has to be read along with sub-clause (ii) and therefore both the elements of "reason to believe" and "satisfaction qua an arrest" are mandated and accordingly are to be recorded by the police officer. *** 32. We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41-A. We express our hope that the investigating agencies would keep in mind the law laid down in Arnesh Kumar [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449], the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60-A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code." (emphasis supplied) ....
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....overy and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173." This Court, however, has not said that if a police officer takes merely one or two of the steps indicated by it, what he has done must necessarily be regarded as investigation. Investigation, in substance, means collection of evidence relating to the commission of the offence. The Investigating Officer is, for this purpose, entitled to question persons who, in his opinion, are able to throw light on the offence which has been committed and is likewise entitled to question the suspect and is entitled to reduce the statements of persons questioned....
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....e offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest; or (c) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; or (d) who has been proc....
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.... and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (6) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice. (7) No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age." (emphasis supplied) 18. Section 35(1) of the BNSS, 2023, through the use of the word "may," makes the position of law rather clear that the power of arrest is discretionary and optional. The power of arrest under Section 35(1)(a) to Section 35(1)(j) of the BNSS, 2023 are distinct and different from each other, with the commonality being an offence which is cognizable in nature. 19. To attract the power of ....
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....rson. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the station without permission would do." (emphasis supplied) 23. Section 35(3) of the BNSS, 2023, once again, reiterates the object of the enactment that an arrest by a police officer is not mandatory in all....
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....e with imprisonment up to 7 years and, that, as long as a person to whom a notice under Section 35(3) of the BNSS, 2023 is issued has complied and continues to comply with the terms of the notice then, as per Section 35(5) of the BNSS, 2023, it is not open for the police officer to arrest him unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. Satender Kumar Antil v. Central Bureau of Investigation, 2025 SCC ONLINE SC 1578 "23. Section 35(6) of the BNSS, 2023 lays down the procedure to be followed in case of non-compliance with the notice issued by the Investigating Agency under Section 35(3) of the BNSS, 2023. Non- compliance with a notice does not ipso facto mandate arrest, as there lies a discretion with the Investigating Agency, which must be of the opinion that the arrest of the concerned person is necessary for the purpose of investigation. In other words, failure to comply with the notice does not lead to automatic arrest. Rather, it is the last resort available to the Investigating Agency, after due exercise of discretion regarding the necessity of arrest. 24. Therefore, the abovementioned provision con....
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....cumstances as aforementioned. 31. Hence, we have no hesitation to hold that a notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua an offence punishable with imprisonment up to 7 years, is the rule, while an arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023, is a clear exception. CONCLUSION 32. 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. 33. On the basis of the interpretation given by us, we conclude as follows: a. An arrest by a police officer is a mere statutory discretion which facilitates him to c....