Notice Instead of Arrest Under Section 35(3) BNSS: The Supreme Court's January 2026 Ruling and What It Means in Uttar Pradesh

Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 41 of the old Code of Criminal Procedure with effect from July 1, 2024. Sub-section (3) carries forward and strengthens what used to be Section 41A CrPC — the requirement that, for less serious offences, the police should first issue a notice rather than walk in with handcuffs.

The provision applies to any cognizable offence where the maximum punishment does not exceed seven years of imprisonment, with or without fine. In such a case, the investigating officer is required to:

• Issue a written notice directing the person to appear before him or at a stated place.
• State the purpose of the notice and the case number.
• Permit the person to comply by attending the investigation, instead of being taken into custody.

The Parliament inserted this safeguard because India's prison data showed that an overwhelming majority of undertrials in UP and elsewhere were behind bars for offences for which the law had never required arrest in the first place. The Supreme Court in Arnesh Kumar v. State of Bihar (2014) had already issued binding directions to the same effect under the old CrPC, but compliance on the ground remained patchy.

The 2026 judgment now ties Section 35(3) BNSS, Article 21 of the Constitution, and the Arnesh Kumar guidelines into a single enforceable framework that Lucknow magistrates and the Allahabad High Court Lucknow Bench are bound to apply.

The Supreme Court bench of Justice M.M. Sundresh and Justice N. Kotiswar Singh delivered the ruling on January 15, 2026, in a matter arising from the Satender Kumar Antil line of cases. The bench framed two questions:

1. Is the notice under Section 35(3) BNSS mandatory in every case involving offences punishable with up to seven years of imprisonment?
2. In the absence of the specific necessity conditions in Section 35(1)(b)(i) and (ii) — such as preventing further offence, tampering with evidence, or threatening witnesses — is an arrest in such cases legally justified?

The court answered the first question with an emphatic yes and the second with a clear no. The bench held that:

• For offences up to seven years, arrest is the exception, not the rule.
• The investigating officer must record reasons in writing if she chooses to arrest despite the notice route being open.
• An arrest made without forming, and recording, that opinion will be liable to be set aside.
• The protection extends to all offences under the BNS, the IPC where still applicable, and special statutes carrying similar punishments.

The court stressed that the proper question for every investigating officer in Lucknow is not "can I arrest?" but "is custody truly necessary?" The practical effect — if faithfully implemented by UP Police — should be a sharp drop in needless arrests in matters such as false FIRs, neighbourhood disputes, business-related complaints, and many family quarrels that today end with someone spending nights in a lock-up.

To know whether the notice route under Section 35(3) BNSS applies to your case, look at the maximum punishment prescribed for the offence in the FIR — not the minimum, and not what the complainant claims you will get. The table below summarises the most commonly registered offences in Lucknow and how they are now treated.

This table is illustrative; the exact provision and the facts of each FIR govern. If a single FIR includes both a sub-7-year offence and a heavier section, the police often try to use the heavier section to justify arrest. A trained criminal defence lawyer in Lucknow can challenge a mala fide addition of sections through an appropriate writ before the High Court.

Under the post-January 2026 framework, an investigating officer in any Lucknow police station who wishes to act on a fresh FIR for an offence punishable up to seven years must follow a defined sequence. The Arnesh Kumar checklist read with Section 35(1)(b) BNSS now imposes the following discipline:

1. Form an opinion in writing on whether arrest is necessary at all.
2. Record specific reasons referable to one of the statutory grounds — preventing further offence, ensuring proper investigation, preventing tampering with evidence, preventing threats to witnesses, or securing presence in court.
3. If those grounds are not made out, issue a Section 35(3) BNSS notice to the suspect.
4. Forward the reasons and the checklist to the magistrate at the time of seeking police custody.

If the officer skips this exercise and arrests anyway, the arrest is vulnerable on at least three grounds:

• Violation of Section 35 BNSS itself.
• Breach of Article 21 of the Constitution — life and personal liberty.
• Departmental liability for the officer under the Supreme Court's standing directions.

For citizens approached by the police for questioning in Lucknow, the safest first step is to consult a lawyer, accept service of the written notice, and attend the investigation on the appointed date. Cooperation in response to a Section 35(3) notice is itself the strongest factual answer to any later attempt to arrest. Anyone facing pressure should also consider preventive remedies such as anticipatory bail.

The 2026 ruling does not stop at the police station. The Supreme Court has placed an independent duty on every magistrate in UP — including the Chief Judicial Magistrate Court at Lucknow — to apply her own mind before remanding a person to police or judicial custody.

The court held that custody cannot be the default. The magistrate must ask, on the first production:

• Was the arrest justified on the recorded reasons?
• Could the investigation continue with the accused on bail under Section 35(3) BNSS notice?
• Are the statutory grounds in Section 35(1)(b) actually present, or are they reproduced in routine, mechanical language?

If the magistrate is not satisfied, the proper order is to release the accused on bond rather than authorise custody. This is a major shift from the older practice in many UP magistrate courts where a remand application was treated as a formality. Defence lawyers in Lucknow are now actively raising this point on the very first production date — and getting clients released the same day.

Where a magistrate nonetheless remands an accused without applying her mind, the remedy lies in a bail application before the Sessions Court or, in deserving cases, a writ petition before the Allahabad High Court Lucknow Bench challenging the legality of the arrest itself.

A notice under Section 35(3) BNSS is a serious legal document, not a casual summons. It typically arrives by hand from a beat constable or, increasingly, through a WhatsApp message followed by a paper copy. The most common mistakes citizens make in Lucknow are either ignoring the notice or rushing to the police station alone.

The correct response, in order, is:

1. Note the case number and section mentioned in the notice. Verify the FIR online via the UP Police citizen portal.
2. Consult a lawyer immediately. A short consultation can often clarify whether the offence is truly within the seven-year cap and what records you should carry.
3. Acknowledge the notice in writing and confirm the date you will appear. Refusing to acknowledge can itself become a ground for arrest.
4. Attend the investigation at the appointed time and place. Carry identity proof and any documents that establish your defence.
5. Do not sign blank papers and do not give a confessional statement without legal advice. Statements under Section 180 BNSS are not substantive evidence in court but can be misused.

If after appearing you face a threat of formal arrest, your lawyer can file an immediate application for anticipatory bail under Section 482 BNSS before the Sessions Court, Lucknow, or the High Court Bench. In genuine cases, a quick consultation with a lawyer before responding to the notice often prevents escalation.

Despite the Supreme Court's clear directions, illegal arrests still happen in Uttar Pradesh — particularly in matrimonial disputes, business cheating complaints, and politically loaded FIRs. When a person has been arrested without compliance with Section 35(3) BNSS, multiple remedies open up at once.

The first and quickest remedy is a regular bail application before the Magistrate or Sessions Court at Lucknow, citing the illegality of the arrest as a strong supporting ground. Where the matter is serious or the offence is non-bailable, a Sessions Court bail application under Section 483 BNSS is the appropriate route.

The more powerful remedies are:

• Writ petition under Article 226 before the Allahabad High Court Lucknow Bench, seeking quashing of the arrest and the FIR where it is mala fide.
• Application for FIR quashing under Section 528 BNSS — the successor to Section 482 CrPC — particularly where the dispute is essentially civil or commercial. See our detailed guide on FIR quashing in Lucknow.
• Compensation for illegal detention, claimed as part of the writ petition, supported by Supreme Court precedents that have awarded monetary relief in such cases.
• Departmental complaint against the arresting officer with the Senior Superintendent of Police, Lucknow, citing the Arnesh Kumar and 2026 directions.

The right combination of remedies depends on the facts — the nature of the offence, the conduct of the police, and whether the FIR itself is sustainable. A focused legal strategy from the very first day usually produces the best outcome.

Advocate Onkar Pandey is a practicing lawyer at the Allahabad High Court Lucknow Bench with extensive experience in criminal law, bail and arrest matters, and writ jurisdiction. With a deep understanding of the Bharatiya Nagarik Suraksha Sanhita, 2023 and years of courtroom experience in Lucknow magistrate, sessions, and High Court matters, Advocate Pandey provides practical legal guidance to clients across Uttar Pradesh. For legal consultation regarding Section 35(3) BNSS notices, illegal arrest, or anticipatory bail in Lucknow, contact Advocate Onkar Pandey for expert advice tailored to your specific situation.