New Delhi: Clarifying the rules, process and conditions under which police may make arrests, the Supreme Court of India has said that an arrest can never be “automatic”. Instead, in cases involving offences punishable with up to seven years’ imprisonment under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the police must serve a prior notice to appear to a person before arresting them. The court has also stressed that even the receipt of such a notice does not make an arrest inevitable.The court made these observations in Satender Kumar Antil v Central Bureau of Investigation, decided on January 15, 2026 by a bench consisting of Justices M.M. Sundresh and N.K. Singh, while interpreting the arrest and notice provisions under the BNSS. The bench took note of the amicus curiae Sidharth Luthra’s submissions, which emphasised that arrest must remain an exception, and that police discretion under the statute has to be exercised cautiously, with reasons recorded in writing.The ruling relates to cognisable offences – cases in which the police do not have to secure a warrant or court order before making an arrest. Luthra submitted that unless specific circumstances set out in Section 35(1)(b)(i) and 35(1)(b)(ii) of the BNSS are satisfied, an arrest for an offence punishable with up to seven years’ imprisonment is not legally justified. He relied on the Supreme Court’s 2014 ruling in Arnesh Kumar v State of Bihar, which laid down safeguards against unnecessary arrests.What the court saidThe Supreme Court said the officer investigating a criminal complaint must first follow a two-step process. The first is to ascertain whether arrest is required for the investigation being conducted. The second is to assess the necessity of arrest on the basis of the statute (primarily sections 33 and 35 of the BNSS).Effectively, the Supreme Court has held that the protections under Article 21 (right to life and personal liberty) cannot be set aside merely because the police are investigating a criminal complaint. The ruling applies to any person whose arrest is being considered in connection with an investigation, and does not make a distinction between an accused, a co-accused or others named in a complaint.Also read: Why Bhartiya Nagrik Suraksha Sanhita’s Ambitious Timelines to Dispense Justice Won’t WorkIn other words, the court said, the police do not have a right or duty to arrest simply because they have the power to do so under the BNSS. Instead, a “police officer is expected to be circumspect and slow in exercising the said power” to arrest.The court stressed that under Section 35(1)(b) of the BNSS, the police “may” arrest without warrant – the rule does not say that the police “shall” arrest, which would have given an officer untrammelled power to do so.Record reasons in writingThe Supreme Court said that in both situations – whether police decide to arrest or not to arrest – the investigating officer must record the reasons in writing. The court stressed that an arrest may not be made at a particular moment, but it can always be made later, since the power to arrest remains with the police. Therefore, recording the reasons either way would help balance individual rights against the police responsibility while investigating a case.In that context, the court described the power to arrest as a “statutory discretion” meant to enable a proper investigation.Referring to what constitutes an “investigation”, the bench pointed out previous rulings claryfying that police investigation is not merely asking questions or gathering details about an occurrence. It is also not limited to arriving at the location of an alleged crime or collecting evidence.The judgment cites H.N. Rishbud and Inder Singh v. State of Delhi (1955), in which the Supreme Court observed:“Merely making some preliminary enquiries upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation.”This is important, because the court has clarified that the power to arrest is a tool in the hands of the investigation agency as it strives to arrive at a conclusion about who committed a crime, its modus operandi and other elements of a crime. It is not a stand-in for the investigation itself: arrest does not mean investigation.Notice before arrestThe Supreme Court noted that the police do have the power to arrest without a warrant or court order, but in offences punishable with up to seven years, this power must be exercised only after issuing a notice before arrest. The court said:“Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.”Also read: Full Text | Central Hall: Do the New Criminal Laws Really Tackle Colonial Foundation?This adds up to two discreet conclusions. One, so long as the person served notice is compliant, an investigation can continue even without arrest. Second, arrest cannot be conflated with investigation, and it is not a given that investigation requires arrest. This is a part of the ruling that has attracted widespread attention, for it implies that people would not be arrested merely for being questioned by police.The court also spelled out how arrest applies in individual cases, reiterating that the power of arrest is “discretionary and optional”.Section 35(1)(b)(i) says a police officer may make an arrest without warrant when they have “reason to believe” that a person has committed the offence complained about (or observed). However, the court pointed out that even if a police officer had “reason to believe” that the person committed the crime to which the criminal complaint relates, it does not mean “automatic” arrest:“An arrest can be made only where the police officer forms a reason to believe under Section 35(1)(b)(i) of the BNSS that the accused has committed an offence, and further satisfies himself that custody is necessary under Section 35(1)(b)(ii) for at least one specified purpose…”The specified purposes in Section 35(1)(b)(ii) include the need to prevent further offences, prevent tampering with evidence, prevent threats or inducement to witnesses or ensure the person’s presence in court when required. The Supreme Court said not all these conditions have to be fulfilled – just one was enough – but the police officer must meet both norms, not just have “reason to believe” the involvement of an individual in the crime complained of.What notice meansThe BNSS notice-of-appearance provision is in Section 179, while Section 35(3) deals with notice to appear when arrest is not required. Both these sections differ. The court, in the January hearing, dealt with Section 35(3), which applies at the police stage: when an officer believes an offence is made out but arrest is not necessary, they can issue a notice to appear instead of taking the person into custody. Section 179, on the other hand, operates at the court proceeding stage: it is a notice of appearance requiring the person to appear before the court on a specified date as part of the formal judicial process.What the court has emphasised is that under Section 35(3) of the BNSS, the police cannot skip the notice stage and proceed straight for arrest, and laid down the ground rules for what the BNSS actually says about arrests in cognisable offences.