JiA Crucial Safeguard Against Arbitrary Arrests
The Supreme Court of India has delivered an important interpretation of Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), reinforcing constitutional safeguards surrounding arrest and personal liberty.
The Court has categorically held that an arrest under Section 35(6) BNSS cannot be made mechanically or routinely. Such arrest must be founded on fresh material or new circumstances that arise after the issuance of a notice under Section 35(3), and not merely on the grounds already mentioned in the notice.
Understanding Section 35 BNSS: Notice Before Arrest
Section 35 BNSS introduces a structured framework governing arrest in offences punishable up to seven years:
• Section 35(3) mandates issuance of a notice directing the accused to appear before the Investigating Officer, instead of immediate arrest.
• Section 35(6) empowers the police to arrest only if subsequent circumstances justify such action.
The legislative intent is unambiguous: arrest is not the rule, but the exception.
Supreme Court’s Key Findings
The Hon’ble Supreme Court laid down the following principles:
• Arrest under Section 35(6) BNSS must be supported by fresh incriminating material discovered after issuance of notice.
• Grounds already considered while issuing a Section 35(3) notice cannot later be reused to justify arrest.
• Mechanical or routine arrests defeat the very purpose of BNSS safeguards.
• Arrest must satisfy the tests of necessity, proportionality, and reasonableness.
Constitutional Perspective: Liberty Over Routine Arrest
This ruling reinforces the constitutional mandate under Article 21 of the Constitution of India, protecting personal liberty and reaffirming the settled principle that:
“Arrest is an exception; liberty is the rule.
Author’s Review
By Adv. Sanjay Bishnoi
This judgment is a landmark clarification under the Bharatiya Nagarik Suraksha Sanhita, 2023. In practice, it was often seen that Section 35(3) notices were issued merely as a formality, followed by arrest on identical grounds. The Supreme Court has decisively rejected this approach.
By mandating fresh material as a prerequisite for arrest under Section 35(6), the Court has restored the balance between investigation and constitutional liberty. This ruling will significantly protect citizens from unnecessary custodial harassment, especially in offences punishable up to seven years.
In my professional view, this decision will act as a strong deterrent against arbitrary arrests and will guide courts in scrutinizing the legality of arrests under the BNSS framework.
About the Author
Adv. Sanjay Bishnoi
Criminal & Constitutional Law Practitioner
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