Satender Kumar Antil Vs Central Bureau of Investigation And Anr. (Supreme Court of India)
Supreme Court Holds Section 35(3) Notice Is Mandatory Because Arrest Is an Exception for Offences Up to 7 Years; Supreme Court Clarifies Arrest Powers Because Reasons Under Section 35(1)(b) Must Exist Before Custody; Compliance with Section 35 Notice Protects Against Arrest Unless Fresh Reasons Are Recorded; Non-Compliance with Section 35 Notice Does Not Automatically Justify Arrest, Says Supreme Court; Arrest Requires Objective Necessity and Not Police Convenience, Rules Supreme Court on BNSS.
The Supreme Court considered two issues concerning Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): whether notices under Section 35(3) must be mandatorily issued in all cases involving offences punishable with imprisonment up to seven years, and whether arrest in such cases is legally justified in the absence of the circumstances specified in Sections 35(1)(b)(i) and 35(1)(b)(ii).
The Amicus Curiae argued that arrest for offences punishable up to seven years is not legally justified unless the statutory conditions under Section 35(1)(b) are satisfied. Reliance was placed on Arnesh Kumar v. State of Bihar and a Bombay High Court decision which emphasized issuance of notice under Section 35(3) and restricted arrest where the accused complies with such notice. Concerns were raised regarding an apparent conflict between the requirement of issuing notice and the power of arrest. It was submitted that the requirement to issue notice is absolute and cannot be bypassed merely by recording reasons for arrest.
