Overview
- A bench of Justices M.M. Sundresh and N. Kotiswar Singh held that serving a Section 35(3) BNSS notice is the rule and that arrest in such cases is a clear exception.
- The Court said arrest is a discretionary investigative tool, not mandatory, and police cannot detain someone merely to ask questions as investigations can proceed without custody.
- Officers must record in writing the reasons both for making an arrest and for deciding not to arrest, aligning Section 35(3) with the proviso to Section 35(1)(b).
- Any arrest after issuing a notice under Section 35(3) must meet Section 35(6) and be based on fresh material not available when the notice was served, and non‑compliance alone does not automatically justify arrest.
- If the person complies with a Section 35(3) notice and appears, Section 35(5) bars arrest, reinforcing the shift away from routine, custody‑driven investigations.