The Supreme Court of India, in Satender Kumar Antil v. CBI (2026 SCC OnLine SC 162), held that the notice requirement under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for offences punishable with imprisonment up to seven years is mandatory and not discretionary. A Bench of Justice M.M. Sundresh and Justice N. Kotiswar Singh interpreted the interplay between Sections 35(1)(b)(i), 35(1)(b)(ii), and 35(3) of the BNSS to establish that pre-arrest notice is a statutory safeguard that investigating agencies cannot bypass.
Background
The Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the Code of Criminal Procedure, 1973 as the principal procedural criminal statute in India. Section 35 of the BNSS governs arrest procedures and introduces a layered framework that differentiates between the powers of arrest based on the severity of the offence.
Section 35(1)(b)(i) addresses offences punishable with imprisonment of less than three years, while Section 35(1)(b)(ii) covers offences punishable with imprisonment between three and seven years. Section 35(3) provides that for offences falling within Section 35(1)(b)(ii) — that is, offences attracting up to seven years imprisonment — the police officer shall issue a notice to the accused directing appearance before the officer, and arrest shall follow only if the accused fails to comply with the notice.
A question had arisen in multiple proceedings across various courts as to whether the notice under Section 35(3) was mandatory in every case or whether investigating officers retained discretion to arrest without prior notice even for offences within the seven-year threshold. The present judgment resolves this interpretive ambiguity.
Key Holdings
The Supreme Court's judgment establishes the following principles:
Mandatory notice: The notice contemplated under Section 35(3) BNSS is mandatory and not discretionary. For all offences punishable with imprisonment up to seven years falling under Section 35(1)(b)(ii), the investigating officer must issue notice to the accused before effecting arrest.
No residual discretion: The Court rejected the argument that Section 35(3) merely provides an additional option available to the investigating officer. The statutory language — "shall issue a notice" — admits no discretionary interpretation.
Arrest only on non-compliance: Arrest under this category of offences is permissible only when the accused fails to comply with the notice issued under Section 35(3). The non-compliance of the accused is a precondition to the exercise of the power of arrest.
Statutory safeguard: The Court characterised the pre-arrest notice requirement as a deliberate legislative safeguard built into the BNSS to prevent unnecessary arrests in cases involving less serious offences, consistent with the statute's overall emphasis on reducing pretrial incarceration.
Implications for Practitioners
This judgment is of immediate practical significance for criminal defence lawyers. Where an accused has been arrested for a Section 35(1)(b)(ii) offence without prior issuance of the Section 35(3) notice, defence counsel now has a clear basis to challenge the legality of the arrest itself. Applications for immediate release on the ground of procedural non-compliance can cite this ruling as binding authority.
Investigating officers and prosecution agencies must integrate the mandatory notice requirement into their standard operating procedures. Failure to issue the Section 35(3) notice before arrest in qualifying cases will render the arrest procedurally defective, potentially exposing the officer to disciplinary action and the investigation to legal challenge.
Practitioners should note that this is among the earliest Supreme Court interpretations of the BNSS arrest framework. As the new criminal code continues to generate interpretive questions, this judgment sets the tone for a purposive reading that prioritises individual liberty safeguards embedded in the statutory text.