SUPREME COURT HOLDS ARREST UNDER BHARATIYA NAGARIK SURAKSHA SANHITA MUST BE BASED ON FRESH MATERIAL NOT ON GROUNDS IN S.35(3) NOTICE

In a landmark Judgment in the case titled Satender Kumar Antil v. Central Bureau of Investigation (MA NO.2034 OF 2022, that strengthens protections for personal liberty, the Supreme Court of India has tightened the framework governing police arrests under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
The Court has held that if police seek to arrest a person under Section 35(6) of the BNSS after first issuing a notice to appear, they cannot justify the arrest on the same earlier grounds. Instead, the arrest must be supported by “fresh material” or new circumstances that emerge after the notice.
This Judgment is a major reassurance for citizens and legal professionals alike, as it clears up key uncertainties in the new procedural law that has replaced the Code of Criminal Procedure (CrPC). The Judgment was delivered by a Two Judge Bench of Justice M.M. Sundresh and Justice N. Kotiswar Singh on 15.01.2026).
The Supreme Court revisited the constitutional balance between personal liberty and investigative powers in offences punishable up to seven years. The core issue was narrow but crucial: if the police have already issued the mandatory notice of appearance under Section 35(3) BNSS (indicating that arrest was not necessary at that stage), can they later arrest the same person under Section 35(6) on the very material that existed when the notice was issued?
Prosecution’s Contentions
The Investigating Agency argued that Section 35(6) is an enabling provision that preserves the police’s ability to arrest when the situation demands it, particularly where the accused is non-cooperative, disobeys the notice or obstructs evidence collection.
It was contended that a prior notice should not become a shield against arrest for the remainder of the investigation, because the accused’s later conduct may demonstrate evasiveness, witness-influencing or risks to the integrity of evidence.
On this reading, Section 35(6) would lose much of its utility if police were forced to meet an additional “fresh material” threshold every time, and mere non-compliance with the notice could itself justify arrest, subject to the statutory framework.
Defence’s Contentions
The Accused countered that Section 35 is structurally designed to reduce unnecessary arrests and bring arrest practices in line with Article 21, treating custody as a last resort rather than an investigative default.
Their central argument was one of institutional discipline, which is, once the police apply their mind and decide to issue a Section 35(3) notice (signalling that arrest is not required), they should not be allowed to “change course” and arrest later on the same facts, because that would hollow out Section 35(3) and convert notice into a procedural ritual.
They also emphasised that even non-compliance should not mechanically trigger arrest; the power is preventive (to secure investigation), not punitive and therefore must be proportionate and backed by recorded reasons.
Court’s Decision: “notice is the rule”
The Supreme Court held that for offences punishable with imprisonment up to seven years, issuance of a notice under Section 35(3) BNSS is the rule and arrest is the exception. It held that arrest after a Section 35(3) BNSS notice is meant to be rare, not routine: the Supreme Court has clarified that once police choose the “notice-first” route, a later arrest under Section 35(6) cannot be justified on the same old material and must rest on fresh circumstances, with recorded reasons.
It reiterated that arrest under Section 35 is not a mandate but a statutory discretion, and that even when conditions suggesting arrest exist, the police must be slow to arrest unless it is “absolutely warranted” for effective investigation.
Most importantly, the Court drew a clear line: if police seek to arrest under Section 35(6) after having issued a Section 35(3) notice, they cannot rely on the same material that existed when the notice was issued; such an arrest must be grounded in fresh materials, new facts or subsequent developments, with reasons recorded in writing. This clarification prevents Section 35(3) from becoming an empty formality and ensures the notice mechanism works as a real safeguard rather than a temporary pause before arrest.
Conclusion
The Judgment also reinforces the approach that custody is justified when investigation cannot proceed effectively without it, not merely because arrest is convenient or because the police want to question someone in custody. Practically, it nudges investigating officers to decide early, based on the statutory tests, whether arrest is truly required and if they later change their mind, to demonstrate what changed and why arrest became necessary only after the notice stage.

YASH HARI DIXIT
LEGAL ASSOCIATE
THE INDIAN LAWYER AND ALIED SERVICES
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