Introduction:

In Satender Kumar Antil v. Central Bureau of Investigation, reported as 2026 LiveLaw (SC) 114, the Supreme Court of India has delivered a significant and much-needed clarification on the scope, limits, and safeguards governing police powers of arrest under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The judgment revisits the balance between the liberty of an individual and the authority of the State to arrest, particularly in cases where the offence alleged is punishable with imprisonment of up to seven years. Building upon the jurisprudence laid down in earlier decisions of the Court in Satender Kumar Antil v. CBI (I) and (II), the present ruling—often referred to as Satender Kumar Antil (III)—specifically examines whether, after issuing a mandatory notice of appearance under Section 35(3) BNSS, the police can subsequently arrest an accused under Section 35(6) on the very same material that existed at the time of issuing the notice. The Court has answered this question with clarity, holding that arrest under Section 35(6) can only be justified on the basis of fresh materials or circumstances that were not available to the investigating officer when the Section 35(3) notice was issued, and that such power must be exercised sparingly, cautiously, and as an exception rather than a routine practice.

Arguments of the Prosecution / Investigating Agency:

The prosecution, represented through the Central Bureau of Investigation, contended that Section 35(6) of the BNSS confers an independent and enabling power of arrest upon the police, particularly in situations where the accused fails to cooperate with the investigation, disobeys the notice of appearance, or creates impediments in the collection of evidence. It was argued that the very purpose of Section 35(6) would be defeated if the police were to be unduly restricted from arresting an accused merely because a notice under Section 35(3) had earlier been issued. According to the prosecution, the issuance of a notice does not create a vested right in favour of the accused to remain immune from arrest throughout the investigation, especially if subsequent conduct of the accused demonstrates evasiveness, non-cooperation, or attempts to influence witnesses or tamper with evidence. The prosecution further submitted that the legislative intent behind Section 35 is to provide flexibility to the investigating agency—first to secure cooperation through notice, and thereafter, if the situation so demands, to exercise the power of arrest in order to ensure effective investigation. Emphasis was also placed on the wording of Section 35(6), which permits arrest when a person fails to comply with the notice or refuses to identify himself, and it was argued that such failure itself constitutes sufficient ground for arrest without the necessity of fresh material. The investigating agency cautioned that imposing a requirement of “fresh material” could hamper investigations and embolden accused persons to misuse the protection afforded by Section 35(3).

Arguments of the Accused / Defence:

On the other hand, the accused argued that Section 35 of the BNSS is a liberty-oriented provision, consciously designed by the legislature to curb arbitrary arrests and to align criminal procedure with constitutional mandates under Articles 14 and 21. It was submitted that once the police, after applying their mind, form an opinion that arrest is not necessary and accordingly issue a notice of appearance under Section 35(3), they cannot subsequently fall back on the very same facts and circumstances to justify an arrest under Section 35(6). The defence stressed that allowing such a practice would render Section 35(3) illusory and reduce it to a mere formality, thereby defeating the object of the provision and the spirit of the earlier judgments in Arnesh Kumar v. State of Bihar and Satender Kumar Antil (I & II). The accused further contended that non-compliance with a notice does not automatically warrant arrest, and that arrest must remain a measure of last resort, justified only when new developments arise, such as discovery of new incriminating material, credible apprehension of absconding, or concrete evidence of interference with the investigation. It was argued that the power under Section 35(6) is not punitive but preventive, and therefore must be exercised with strict adherence to procedural safeguards, proportionality, and recorded reasons. The defence also urged the Court to lay down clear guidelines to prevent misuse of arrest powers, particularly in cases involving economic offences and regulatory crimes punishable with lesser sentences.

Court’s Judgment:

After an exhaustive examination of the statutory scheme of the BNSS, constitutional principles, and prior precedents, the Supreme Court decisively ruled in favour of a restrained and rights-oriented interpretation of Section 35. The Court reaffirmed that issuance of a notice under Section 35(3) BNSS is mandatory in cases where the offence is punishable with imprisonment of up to seven years, unless the conditions justifying arrest under Section 35(1)(b) are clearly made out at the outset. The Bench clarified that Section 35(6) does not provide a carte blanche to the police to arrest an accused after issuing a notice, and that the power of arrest at this stage is not automatic, routine, or mechanical. In a crucial and authoritative clarification, the Court held that while effecting an arrest under Section 35(6) after the issuance of a notice under Section 35(3), the police officer cannot rely upon the circumstances and materials that were already in existence at the time of issuing the notice. Instead, such an arrest must be founded strictly on fresh materials, new facts, or subsequent developments that were not within the knowledge of the police officer earlier. The Court reasoned that permitting arrest on the same material would amount to a review of the earlier decision without any new basis, which is impermissible in law and contrary to the object of the provision. The Bench further cautioned that the power of arrest under Section 35(6), read with Section 35(1)(b), is an exception and must be exercised sparingly, with due application of mind, recorded reasons, and strict adherence to the principle that arrest is a measure of last resort. In doing so, the Court filled the interpretative gap left open in Satender Kumar Antil (II), where it was held that non-compliance with a notice does not automatically justify arrest, but the requirement of fresh material was not expressly examined. By issuing a clear directive to police officials across the country, the Court underscored that liberty cannot be sacrificed at the altar of convenience, and that procedural safeguards under the BNSS must be meaningfully enforced rather than ritualistically observed.