NEW DELHI: The Supreme Court held on Thursday that serving of notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is mandatory by the police to accused persons who are alleged to have committed an offence punishable up to seven years of imprisonment.
A two-judge bench of Justices M M Sundresh and N Kotiswar Singh said, “No arrest could be made for offences which are punishable with less than seven years’ imprisonment unless the mandatory requirement of serving a notice under Section 35(3) of BNSS is complied with.” The court also clarified to the probe agencies, including prosecution and police, that as a first step, the police must serve the notice instead of directly arresting the accused.
The top court categorically noted that arrest cannot be a routine exercise. It remarked that arrest is a “discretionary and optional” act, to be exercised by a police officer based on the facts of each case. The court strongly said that the power to arrest after issuing a notice must also be exercised cautiously and sparingly.
The bench passed the order while deciding whether notices under Section 35(3) are compulsory in all cases involving offences punishable up to seven years.
The court said that for offences punishable up to seven years, it must be ensured that arrests are justified, reasoned, and transparent. It noted, “Even if the circumstances warranting an arrest of a person are available in terms of the conditions mentioned under Section 35(1)(b) of the BNSS, 2023, the arrest shall not be undertaken, unless it absolutely warranted.”
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