Warrantless Arrest Under the BNSS, 2023: Police Discretion, Procedural Safeguards and the Right to Personal Liberty in India

Author

Rishita Kumre

Abstract

 The power of the police to arrest without a warrant is among the most intrusive powers the State exercises over an individual before any judicial finding of guilt. The Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), which replaced the Code of Criminal Procedure, 1973 (“CrPC”) with effect from 1 July 2024, retains this power in Section 35 while surrounding it with a network of notice, recording, information and production requirements. This paper asks a specific question: when does the exercise of the power to arrest without a warrant cease to be a lawful investigative step and become inconsistent with the right to personal liberty under Article 21 of the Constitution of India?

Using a doctrinal method, the paper traces the constitutional foundations of the right against arbitrary arrest, analyses Section 35 and its companion safeguards, and studies the Supreme Court’s arrest jurisprudence from Joginder Kumar and

D.K. Basu through Arnesh Kumar to the decision of 15 January 2026 in Satender Kumar Antil v. Central Bureau of Investigation, which held that for offences punishable with imprisonment up to seven years a notice under Section 35(3) is the rule and arrest the exception. The paper argues that the BNSS now embodies a necessity-based model of arrest, but that the protective value of that model depends on the quality of recorded reasons, the rigour of magisterial scrutiny and the availability of real consequences for non-compliance. It proposes a six-stage diagnostic framework for identifying when police discretion becomes constitutionally suspect and closes with reform recommendations.

Keywords

BNSS 2023, Section 35, arrest without warrant, police discretion, Article 21, necessity, notice of appearance, procedural safeguards.

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References

The Constitution of India, 1950, arts. 14, 21, 22, 32 and 226. The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023).

The Code of Criminal Procedure, 1973 (Act 2 of 1974) (repealed). The Code of Criminal Procedure, 1898 (repealed).

The Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009). The Police and Criminal Evidence Act, 1984 (UK).

BOOKS:

K.N. Chandrasekharan Pillai (rev.), R.V. Kelkar’s Criminal Procedure, Eastern Book Company (6th ed. 2018).

CASE LAWS:

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

Bhim Singh v. State of J&K, (1985) 4 SCC 677

Chandrashekhar Bhimsen Naik v. State of Maharashtra, (Bom. HC, 2024)

Citizens for Democracy v. State of Assam, (1995) 3 SCC 743

D.K. Basu v. State of West Bengal, (1997) 1 SCC 416

E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3

Joginder Kumar v. State of U.P., (1994) 4 SCC 260

Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 Maneka Gandhi v. Union of India, (1978) 1 SCC 248

Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314

Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 Pankaj Bansal v. Union of India, (2024) 7 SCC 576

Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254

Prakash Singh v. Union of India, (2006) 8 SCC 1

Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526

Rudul Sah v. State of Bihar, (1983) 4 SCC 141

Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51

Satender Kumar Antil v. Central Bureau of Investigation, 2026 INSC 115 (SC, 15 January 2026)

Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 Vihaan Kumar v. State of Haryana, 2025 SCC OnLine SC 269 Atwater v. City of Lago Vista, 532 US 318 (2001)

County of Riverside v. McLaughlin, 500 US 44 (1991)

Gerstein v. Pugh, 420 US 103 (1975)

Payton v. New York, 445 US 573 (1980)

REPORTS:

Law Commission of India, 177th Report on Law Relating to Arrest (December 2001). National Crime Records Bureau, Prison Statistics India, Ministry of Home Affairs (annual). National Police Commission, Third Report, Government of India (1980).

WEBSITES:

Yash Mittal, Arrest Exception, Not Rule For Offences Punishable Up To 7 Yrs; S.35(3) BNSS Notice Mandatory In Such Cases: Supreme Court ,LiveLaw (5February 2026), https://www.livelaw.in/supreme-court/arrest-exception-not-rule-for-offences-punishable-up-to-7-yrs-s353-bnss-notice-mandatory-supreme-court-521972

BNSS | Arrest Under S. 35(6) Must Be Based On Fresh Material, Not On Grounds In S.35(3) Notice: Supreme Court, LiveLaw (February2026), https://www.livelaw.in/supreme-court/bnss-arrest-under-s-356-must-be-based-on-fresh-material-not-on-grounds-in-s353-notice-supreme-court-522156

 

 

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