Arrest under Section 35(6) BNSS

Source: Supreme Court 

Why in News? 

The Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation  (2026) clarified crucial safeguards regarding arrest powers under Section 35(6) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, holding that such arrests must be based on fresh material and cannot rely on grounds existing at the time of issuing a notice under Section 35(3) BNSS. 

What was the Background of Satender Kumar Antil v. Central Bureau of Investigation (2026) Case? 

• The case arose in the context of interpreting arrest provisions under the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the Code of Criminal Procedure, 1973.  
• Section 35(3) of the BNSS mandates issuance of a notice for offences punishable with imprisonment up to seven years, requiring the accused to appear before the police officer.  
• Section 35(6) BNSS empowers police to arrest a person who fails to comply with a Section 35(3) notice or fails to identify himself to the police. 
• In the earlier case of Satender Kumar Antil v. CBI (II), (2025), a bench comprising Justices M.M. Sundresh and N. Kotiswar Singh held that non-compliance with a Section 35(3) notice does not automatically justify arrest.  
• The earlier bench emphasized that arrest is a measure of last resort, to be exercised by the investigating agency only after applying its mind to the necessity of arrest. 
• However, the earlier bench did not examine whether police officers are required to rely on fresh material or factors distinct from those considered at the stage of issuing the Section 35(3) notice while effecting an arrest under Section 35(6). This gap in interpretation necessitated further clarification by the Court.  
• The present case specifically addressed whether the same circumstances and factors existing at the time of issuing a Section 35(3) notice can be used to justify an arrest under Section 35(6). 

What were the Court's Observations? 

• The Court clarified 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), 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.  
• The Court held that 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. 
• The Court cautioned that the power of arrest under Section 35(6) of the BNSS, 2023 is to be exercised rather sparingly.  
• The Court issued a direction to police officials that their power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023, pursuant to a notice issued under Section 35(3) of the BNSS, 2023 is not a matter of routine, but an exception.  
• The Court emphasized that police officers are expected to be circumspect and slow in exercising the said power of arrest. 
• The Court affirmed that issuance of a notice under Section 35(3) of the BNSS is mandatory for offences punishable with imprisonment up to seven years.  
• The Court clarified that an arrest under Section 35(6) can be made even after such notice only based on fresh materials that were not available to the police officer at the time the Section 35(3) notice was issued.  

What are the Key Provisions Related to Arrest under BNSS? 

About: 

• Section 35 of the BNSS 2023 is a provision that empowers police officers to arrest any person without obtaining a warrant from a Magistrate in specific circumstances involving cognizable offences. 

Grounds for Arrest without Warrant: 

Immediate Arrest Situations: 

• When a person commits a cognizable offence in the presence of a police officer. 
• When credible information is received that a person has committed a cognizable offence punishable with imprisonment for more than seven years, with or without fine, or with death sentence. 
• When a person has been proclaimed as an offender under BNSS or by State Government order. 
• When stolen property is found in someone's possession and they are reasonably suspected of committing an offence related to it. 
• When a person obstructs a police officer in execution of duty or has escaped or attempts to escape from lawful custody. 
• When a person is reasonably suspected of being a deserter from the Armed Forces. 
• When a person is involved in an act committed outside India which would be punishable as an offence if committed in India. 
• When a released convict breaches, rules are made under Section 394(5). 
• When a requisition for arrest is received from another police officer. 

Conditional Arrest for Offences Up to Seven Years:  

• For cognizable offences punishable with imprisonment for less than seven years or extending up to seven years, arrest is permitted only if specific conditions are satisfied: 
  • The police officer has reason to believe the person committed the offence based on reasonable complaint, credible information, or reasonable suspicion. 
  • The police officer is satisfied that arrest is necessary for preventing further offences, proper investigation, preventing evidence tampering, preventing inducement or threats to witnesses, or ensuring court appearance. 
  • The police officer must record reasons in writing while making the arrest. 
• Notice Procedure (Alternative to Arrest):  
  • When arrest is not required under the above provisions, the police officer must issue a notice directing the person to appear before him or at a specified place.  
  • The person has a duty to comply with the notice terms, and as long as they comply, they cannot be arrested unless the police officer records specific reasons for arrest necessity. 
• Consequences and Safeguards:  
  • If a person fails to comply with the notice or is unwilling to identify themselves, the police officer may arrest them for the offence mentioned in the notice, subject to any orders passed by a competent court.  
  • For offences punishable with imprisonment of less than three years, prior permission from an officer not below the rank of Deputy Superintendent of Police is required before arresting infirm persons or those above sixty years of age. 
  • The provision includes a mandatory safeguard requiring police officers to record reasons in writing when arrest is not made, ensuring accountability and preventing arbitrary arrests while balancing law enforcement needs with protection of individual liberty.