For offences punishable with imprisonment of up to seven years, arrest is not supposed to be the automatic first step. Under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), and following the Supreme Court’s January 2026 ruling in Satender Kumar Antil v. Central Bureau of Investigation, a notice to appear is the rule and arrest is the exception. Sci API
The position is important for business owners, directors and professionals who may find themselves named in criminal complaints arising from commercial, employment, contractual or payment disputes. A cognizable FIR does not, by itself, mean that immediate arrest must follow.
What does Section 35 BNSS actually say about arrest?
Section 35 BNSS deals with situations in which police may arrest without a warrant.
Where the alleged cognizable offence is punishable with imprisonment up to seven years, Section 35(1)(b) requires more than an allegation. The police officer must first have reason to believe, on the basis of the complaint, information or suspicion, that the person committed the offence.
Even that is not enough.
The officer must additionally be satisfied that arrest is necessary for at least one of the statutory purposes, such as:
preventing a further offence;
conducting a proper investigation;
preventing disappearance or tampering with evidence;
preventing inducement, threat or promise to a witness; or
ensuring the person's presence before the court.
The officer must record the reasons for arrest in writing. Where arrest is not required, reasons for not arresting must also be recorded. Sci API
You can refer to the statutory text of the Bharatiya Nagarik Suraksha Sanhita, 2023.
What did Arnesh Kumar change about police arrest powers?
In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, the Supreme Court made an important distinction between the power to arrest and the need to arrest.
The case arose under the old Code of Criminal Procedure, 1973. The Court held that, for offences punishable with imprisonment up to seven years, police should not make an arrest merely because they have the legal power to do so.
An officer was required to examine why custody was actually necessary and record the reasons supporting that decision. Magistrates were also directed not to authorise detention mechanically without examining the police officer's justification.
Although Arnesh Kumar was decided under Sections 41 and 41-A of the CrPC, the Supreme Court's 2026 decision expressly considered those principles while interpreting Section 35 BNSS. Sci API
So, the practical principle survives under the new criminal procedure law: the existence of an FIR and the existence of a power of arrest are not the same as justification for making an arrest.
How this works in actual police-station practice
(add your thoughts in this section )
What did Satender Kumar Antil add to this position?
The Supreme Court has dealt with arrest and bail safeguards repeatedly in Satender Kumar Antil v. CBI.
Its well-known 2022 judgment, reported as (2022) 10 SCC 51, reinforced the principles in Arnesh Kumar and emphasised compliance with the statutory restrictions on unnecessary arrest.
More importantly for the current BNSS position, on 15 January 2026, the Supreme Court delivered a further reportable order in the Satender Kumar Antil proceedings: 2026 INSC 115.
The Court specifically considered Section 35 BNSS and held that, for offences punishable with imprisonment up to seven years:
a Section 35(3) notice is the rule, while arrest under Section 35(6) read with Section 35(1)(b) is the exception.
The Court further explained that the power of arrest must be treated as a matter of objective necessity, rather than the investigating officer's convenience. Police cannot arrest somebody merely because custody would make questioning easier. Sci API
The official Supreme Court judgment is available here: Satender Kumar Antil v. CBI — 2026 INSC 115.
Is a Section 35(3) notice compulsory before every arrest?
For the category considered by the Supreme Court—offences punishable with imprisonment up to seven years—the January 2026 ruling says that issuance of a Section 35(3) notice is the rule, while arrest is an exception that must satisfy the safeguards in Section 35.
This point needs to be stated carefully.
Section 35 does not abolish the police power to arrest. Rather, it restricts when that power should actually be exercised.
The Supreme Court held that before effecting an arrest in this category, the officer must have:
the required “reason to believe” under Section 35(1)(b)(i); and
at least one of the necessity conditions under Section 35(1)(b)(ii).
Even where these conditions exist, the Court said an arrest should not be undertaken unless it is absolutely warranted. Sci API
That distinction is crucial. The judgment does not say that police can never arrest in an offence carrying seven years or less. It says that arrest must be justified as an exception.
What happens if you comply with a Section 35 notice?
Compliance gives significant statutory protection against routine arrest.
Section 35(4) requires the recipient to comply with the notice. Section 35(5) then provides that where the person complies and continues to comply, that person should not be arrested for the offence mentioned in the notice unless the police officer records reasons for subsequently concluding that arrest is required. Sci API
For that reason, a person receiving a Section 35 notice should normally preserve:
the notice itself;
proof of each appearance;
written correspondence with the investigating officer;
documents supplied during the investigation; and
evidence of requests for adjournment or another date, where applicable.
Ignoring a notice simply because an arrest appears unlikely can be a serious mistake.
Practical experience when clients receive Section 35 notices
(add your thoughts in this section )
Can police arrest you later after first deciding not to arrest?
Yes, but the 2026 Supreme Court ruling places an important restriction on a subsequent arrest after a Section 35(3) notice has already been issued.
The Court recognised that the power to arrest does not disappear forever merely because the officer earlier decided that arrest was unnecessary. Investigation may continue without arrest, and later developments may potentially justify custody. Sci API
However, the Supreme Court went further in paragraph 30 of its January 2026 order.
It held that where police seek to arrest a person after issuing a Section 35(3) notice, the subsequent arrest must be based on materials or factors that were not available to the officer when the notice was originally issued.
The circumstances already available when the police chose the notice route cannot simply be recycled later as justification for arrest. Sci API
This is one of the most important safeguards in the 2026 ruling.
For example, suppose an accused receives a Section 35 notice, appears whenever required and supplies requested documents. Police should not ordinarily be able to later arrest that person merely by referring to the same facts that were already known when the notice was issued. There would need to be legally sufficient subsequent material or circumstances justifying the change in position.
Does failure to comply with a Section 35 notice automatically mean arrest?
No.
Section 35(6) permits arrest in circumstances involving failure to comply with the notice or unwillingness to identify oneself, subject to competent court orders. But the Supreme Court clarified that non-compliance does not make arrest automatic.
The investigating agency must still exercise its discretion and determine whether custody is actually necessary.
The Court described arrest in this situation as a last-resort measure rather than the automatic consequence of missing a notice. Sci API
That does not mean a person can safely ignore police notices. Non-compliance can substantially weaken the protection available under Section 35(5) and may provide additional grounds on which police seek arrest.
Can police arrest merely because they need to interrogate you?
Not merely for that reason.
The Supreme Court's 2026 formulation is particularly useful here. It held that the arrest power must reflect a strict objective necessity.
In practical terms, the question is not simply:
“Would police questioning be easier in custody?”
The relevant question is closer to:
“Can this investigation proceed effectively without taking this person into custody?”
The Court expressly rejected the idea that arrest can be used simply to ask questions. Sci API
Does the seven-year safeguard apply to offences carrying more than seven years?
The specific Section 35(1)(b) framework discussed in Arnesh Kumar and in the January 2026 Satender Kumar Antil ruling concerns offences punishable with imprisonment up to seven years.
Different statutory conditions apply where the cognizable offence is punishable with imprisonment that may extend to more than seven years or with death. Section 35(1)(c) separately deals with that category. Sci API
Therefore, it would be legally incorrect to present the “notice is the rule” formulation as a universal bar on arrest in every criminal case.
The exact offence and its maximum statutory punishment must be checked first.
What special protection applies to elderly or infirm persons?
Section 35(7) BNSS creates an additional safeguard in a narrower category.
Where the offence is punishable with less than three years' imprisonment, and the person is either infirm or above 60 years of age, an arrest cannot be made without prior permission of an officer not below the rank of Deputy Superintendent of Police. Sci API
This requirement is separate from the wider arrest safeguards applicable under Section 35.
What should the Magistrate examine after an arrest?
Judicial remand should not become an automatic formality.
Arnesh Kumar required the Magistrate to examine the police material and satisfy themselves that detention was justified rather than merely accepting the investigating officer's request.
The January 2026 Supreme Court order reproduced and reaffirmed those principles while considering Section 35 BNSS. Sci API
For a person challenging the legality of an arrest, therefore, the first-remand stage can be extremely important. The record may need to be examined for:
compliance with Section 35;
service and compliance with any Section 35(3) notice;
written reasons for arrest;
the particular necessity relied upon by police;
new material relied upon where arrest follows an earlier notice; and
the Magistrate's independent consideration of the arrest.
What advocates commonly check at the first remand hearing
(add your thoughts in this section )
What if the criminal complaint arises from a business dispute?
A contractual or commercial background does not automatically prevent criminal proceedings. Equally, describing a dispute as criminal does not remove the procedural safeguards governing arrest.
Business owners should therefore separate two questions:
First: Do the allegations disclose the ingredients of the alleged criminal offence?
Second: Even if investigation is permissible, is immediate arrest actually justified under Section 35 BNSS?
These are different legal questions.
For broader material concerning business disputes, readers may also refer to Law Wallet's Commercial Disputes & Arbitration practice and its Legal Insights library.
What should you do after receiving a Section 35 notice?
The safest approach is usually to treat the notice seriously while preserving a clear documentary record of cooperation.
Read the FIR and notice carefully, identify the offences and their maximum punishments, appear within the specified time or seek a documented change of date where genuinely necessary, retain proof of attendance and obtain legal advice before making statements or supplying potentially sensitive business documents.
If there is a genuine apprehension of arrest despite compliance, the availability of anticipatory bail under Section 482 BNSS may also need to be considered on the facts.
A Section 35 notice should not be mistaken for either a clean chit or an arrest warrant. It is part of the statutory mechanism intended to permit investigation without unnecessary deprivation of liberty.
The position after the Supreme Court's 2026 ruling
The law in 2026 can be summarised simply.
For a cognizable offence punishable with imprisonment up to seven years, arrest is not automatic. A Section 35(3) notice is the rule. Police must objectively justify the need for custody under Section 35(1)(b), and written reasons are required.
Where the person complies with the notice, subsequent arrest is exceptional. Most importantly, where police later invoke Section 35(6) after issuing the notice, the Supreme Court has said the arrest must rest on new material or factors that were unavailable when the notice was issued. Sci API
Arnesh Kumar therefore remains highly relevant, but the current position should now be understood through the text of Section 35 BNSS and the Supreme Court's 15 January 2026 order in Satender Kumar Antil, 2026 INSC 115.
For other legal and business-law updates, see the Law Wallet Legal Insights section. A matter-specific enquiry can be made through the firm's contact page.
This article provides general legal information and is not a substitute for advice based on the FIR, applicable offences, investigation record and facts of a particular case.
