Supreme Court: Arrest Under S. 35(6) of BNSS Must Be Based On Fresh Material, Not On Grounds In S.35(3) Notice

 Section 35(6) of the BNSS, 2023 lays down the procedure to be followed in case of non-compliance with the notice issued by the Investigating Agency Under Section 35(3) of the BNSS, 2023. Non-compliance with a notice does not ipso facto mandate arrest, as there lies a discretion with the Investigating Agency, which must be of the opinion that the arrest of the concerned person is necessary for the purpose of investigation. In other words, failure to comply with the notice does not lead to automatic arrest. Rather, it is the last resort available to the Investigating Agency, after due exercise of discretion regarding the necessity of arrest. {Para 23}

27. We have already clarified the position qua Section 35(6) of the BNSS, 2023 in our earlier order dated 16.07.2025 wherein, it has been stated that even assuming that the person to whom a notice Under Section 35(3) of the BNSS, 2023 has been issued, fails to comply with the terms of the notice or is unwilling to identify himself, an arrest is not a matter of course.

28. We have also clarified, on the earlier occasion, that the procedure contained in Section 35(6) of the BNSS, 2023 has been introduced on the touchstone of Article 21 of the Constitution of India, 1950. These inbuilt safeguards are required to be complied with by the police officer, in letter and spirit.

29. From a conspectus of the above, it is amply clear that even if the conditions mentioned Under Section 35(1)(b) of the BNSS, 2023 are in existence, there can be no mandatory arrest, as a police officer still may or may not decide to do so.

30. 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) of the BNSS, 2023, 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. In other words, 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. Therefore, the power of arrest Under Section 35(6) of the BNSS, 2023 is to be exercised rather sparingly, only under circumstances as aforementioned.

IN THE SUPREME COURT OF INDIA

MA No. 2034 of 2022 in MA No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 and MA No. 2035 of 2022 in Special Leave Petition (Crl.) No. 5191 of 2021

Decided On: 15.01.2026

Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

M.M. Sundresh and N. Kotiswar Singh, JJ.

Citation:  2026 INSC 115, MANU/SC/0119/2026.

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