Notice Is the Rule, Arrest the Exception: Supreme Court Clarifies Arrest Powers Under BNSS, 2023

Introduction: A Liberty-Centric Recalibration of Criminal Procedure

In a significant reaffirmation of personal liberty, the Supreme Court has held that no person accused of an offence punishable with imprisonment up to seven years should be arrested unless such arrest is absolutely warranted. Emphasising that issuance of notice to cooperate with investigation is the norm, the Court ruled that arrest must remain a rare and carefully justified exception.

This judgment assumes heightened importance as it offers one of the first authoritative interpretations of arrest-related provisions under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure, 1973 (CrPC) with effect from 1 July 2024.

Background of the Case and Reference Before the Court

The ruling was delivered by a bench comprising Justice MM Sundresh and Justice N Kotiswar Singh, while answering a reference concerning the scope and mandatory nature of Section 35 of the BNSS.

The core question before the Court was whether:

  • Police officers are mandatorily required to issue notices under Section 35(3) in offences punishable up to seven years; and

  • Arrest can be justified merely by recording “reasons for arrest” in the absence of statutory necessity conditions.

Senior Advocate Sidharth Luthra, appearing as amicus curiae, cautioned against police bypassing statutory safeguards by invoking discretionary arrest powers under the guise of investigation.

Statutory Framework: Section 35 of the BNSS, 2023

Section 35(1)(b): Preconditions for Arrest Without Warrant

The Court clarified that arrest without warrant for offences punishable up to seven years is permissible only if two statutory thresholds are met:

  1. Reason to Believe – The police officer must have reasonable grounds to believe that the person has committed the offence; and

  2. Necessity Test – At least one of the following conditions must exist:

    • To prevent further offence

    • To prevent tampering with evidence

    • To prevent inducement or threat to witnesses

    • To ensure the accused’s presence during investigation or trial

Even when these conditions exist, arrest is not automatic.

Section 35(3): Notice to Cooperate Is the Norm

The Court held that issuance of a notice under Section 35(3) calling upon the accused to cooperate with investigation is the rule, not an exception.

A police officer must consciously evaluate whether the objectives of investigation can be achieved without arrest, and record reasons either for issuing a notice or for effecting arrest.

The Court categorically stated:

“An investigation can go on even without an arrest.”

Section 35(5) and 35(6): Arrest After Notice—A Narrow Window

  • Section 35(5) creates an implied bar on arrest if the accused complies with the notice.

  • Section 35(6) permits arrest only if:

    • The accused fails to comply with the notice; or

    • Fresh circumstances arise after issuance of notice, which must be specifically recorded in writing.

Crucially, the Court ruled that non-compliance with notice alone does not justify arrest. Arrest must be based on new material unavailable at the time of issuing the notice.

Arrest Is a Discretion, Not a Duty

The Supreme Court underscored that the power of arrest is a statutory discretion, not a mandatory obligation.

“An arrest by a police officer is a mere statutory discretion which facilitates investigation and cannot be exercised mechanically.”

The Court cautioned against treating arrest as a default investigative tool, warning that such practice undermines the presumption of innocence and constitutional liberty.

Constitutional Foundation: Article 21 and Due Process

The judgment firmly roots arrest jurisprudence in Article 21 of the Constitution of India, which guarantees the right to life and personal liberty.

The Court reiterated that:

  • Deprivation of liberty must be just, fair, and reasonable

  • Arrest for convenience or coercion violates constitutional due process

  • Statutory safeguards under BNSS must be followed in letter and spirit

Judicial Precedents Reaffirmed

Arnesh Kumar v. State of Bihar (2014)

The Court reaffirmed the landmark ruling which held that:

  • Arrest should not be automatic

  • Police officers must justify the necessity of arrest

  • Magistrates must apply independent judicial mind while authorising detention

Satender Kumar Antil v. CBI (2022)

The Court relied on this decision to reiterate that:

  • Liberty is the rule, incarceration the exception

  • Compliance with notice regimes militates against arrest

  • Criminal law cannot be used as a pressure tactic

The present judgment harmonises BNSS provisions with these precedents, ensuring continuity in liberty-centric criminal procedure.

Misuse of Arrest in Civil and Commercial Disputes

The Court took judicial notice of a disturbing trend where criminal proceedings are initiated in civil, commercial, and contractual disputes to:

  • Recover money

  • Force settlements

  • Exert pressure through arrest

The ruling sends a clear signal that criminal law cannot be weaponised to short-circuit civil remedies.

Judicial Directions and Legal Impact

The Supreme Court held that:

  • Arrest is not mandatory even when statutory power exists

  • Notice under Section 35(3) is the default mechanism

  • Arrest must be backed by necessity, proportionality, and recorded reasons

  • Police discretion must be exercised with restraint and accountability

Legal experts have hailed the judgment as a structural safeguard against arbitrary arrests under the new criminal code.

Conclusion: A Clear Message to Law Enforcement

This verdict decisively reinforces that personal liberty cannot be sacrificed at the altar of investigative convenience.

By interpreting the BNSS in harmony with constitutional guarantees and settled precedent, the Supreme Court has ensured that:

  • Arrest does not become punishment before trial

  • Liberty remains the cornerstone of criminal justice

  • The transition from CrPC to BNSS does not dilute civil rights

The ruling stands as a constitutional checkpoint — reminding the State that power without restraint is antithetical to the rule of law.

Location: Pune, Maharashtra, India

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