The Supreme Court recently ruled that for crimes punishable by up to seven years in prison, prior notification to the accused is mandatory. 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, the Bar&Bench said.
A bench comprising Justices MM Sundresh and N Kotiswar Singh observed that the power of arrest is only a statutory discretion given to the police to aid investigations and should not be considered mandatory.
The court said: “Notice under Section 35(3) of the BNSS 2023 to the accused or any person concerned, which are offenses punishable with imprisonment up to 7 years, is the rule.
“Even if the circumstances justifying the arrest of a person are available in terms of the conditions set out in Section 35(1)(b) BNSS, 2023, the arrest will not take place unless it is absolutely justified,” the court continued.
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The decision came when the court examined whether the issuance of a notice under Section 35(3) of the BNSS was “compulsory to be given before arrest in all cases, and especially in cases where the criminal offense carries a sentence of up to seven years, when the arrest of the accused is necessary”.
Senior advocate Siddharth Luthra argued that the police cannot arrest a person unless certain specific conditions are met under the BNSS in those cases punishable up to seven years.
“On the one hand, the order obliges the police officer to issue a notice under Section 35(3) of the BNSS, 2023 to the accused, which is an offense punishable by up to 7 years’ imprisonment. On the other hand, it appears to allow the police officer to make an arrest in the same category of offences,” he said, adding that the “reasons for arrest” are recorded and valid.
This, he said, creates a procedural gray area under Section 35(3), citing the judgment of the Bombay High Court in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025).
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“This is said to create a gray area in terms of procedural compliance of Section 35(3) BNSS, 2023 by a police officer,” Luthra said, referring to the Bombay High Court judgment in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025).
Additional Solicitor General Aishwarya Bhati said the legal position has already been settled by earlier judgments and that arrest in such cases is not automatic but can be made only if the legal conditions are met.
The Supreme Court pointed out that Section 35(1) of the BNSS uses the word “may” when referring to arrest without a warrant, so the power to arrest is “free and not automated”.
“In order to obtain the power to arrest under Section 35(1)(b) BNSS, 2023, the conditions listed below should be carefully observed. Section 35(1)(b)(i) and Section 35(1)(2023) is sine qua non in all cases of arrest,” the court added.
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It continued: “The provisions of § 35 paragraph 1 letter b) point i) of the BNSS, 2023 speak of “reason for presumption” on the part of the police officer. Such presumption should be based on a complaint, information or suspicion that the person concerned has committed a crime. However, this alone would not be enough. In addition, none of the conditions listed in § 35 (bNS) (ii) BNSS(ii) 2023, in other words, it is not required that all the conditions listed in § 35 paragraph 1 letter b) point ii) BNSS, 2023, but only the existence of one of them is required.
“After the police officer is convinced of the necessity of an arrest, he is obliged to record his reasons for the arrest as provided for in Section 35(1)(b) BNSS, 2023, or simply issue a notice pursuant to Section 35(3) BNSS, 2023. Section 35(1)(b) built-in protective devices.”
