No person should be arrested for an alleged offence punishable with imprisonment of up to seven years unless such arrest is “absolutely warranted”, the Supreme Court has held, underscoring that issuing a notice to cooperate with the investigation is the rule, while arrest must remain a clear exception.
In what is among the first authoritative interpretations of the arrest-related provisions under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 -- which replaced the Code of Criminal Procedure from July 1, 2024 -- a bench of justices MM Sundresh and N Kotiswar Singh ruled that arrest is not mandatory even when the law empowers the police to do so. The court clarified that the power of arrest is a statutory discretion meant to facilitate investigation, not an obligation to be exercised routinely.
“An arrest by a police officer is a mere statutory discretion which facilitates him to conduct proper investigation, in the form of collection of evidence, and therefore shall not be termed as mandatory,” said the bench, laying down a detailed framework governing arrests for offences punishable up to seven years.
The ruling assumes particular significance amid growing concerns over routine arrests being used as a pressure tactic, especially in cases arising from civil, commercial and contractual disputes where criminal proceedings are initiated to recover money or secure settlements. By reaffirming that arrest is an exception and not a tool of coercion, the judgment seeks to curb the misuse of criminal law to short-circuit civil remedies and to protect individual liberty from arbitrary State action.
{{/usCountry}}The ruling assumes particular significance amid growing concerns over routine arrests being used as a pressure tactic, especially in cases arising from civil, commercial and contractual disputes where criminal proceedings are initiated to recover money or secure settlements. By reaffirming that arrest is an exception and not a tool of coercion, the judgment seeks to curb the misuse of criminal law to short-circuit civil remedies and to protect individual liberty from arbitrary State action.
{{/usCountry}}The judgment, which was released on Wednesday, arose from a reference examining whether notices under Section 35(3) of the BNSS (a provision that requires the police to call the accused or other individuals to cooperate with the investigation instead of arresting them) must be mandatorily issued in such cases and whether arrest is legally justified in the absence of circumstances specified under other clauses of section 35, which governs arrests without a warrant.
Assisted by senior advocate Sidharth Luthra as amicus curiae, the court examined the scope of Section 35 of the BNSS, which replaces Section 41 and 41A of the Code of Criminal Procedure (CrPC). Luthra argued that in the absence of the statutory conditions justifying arrest, the police cannot bypass the requirement of issuing a notice merely by recording “reasons for arrest”, warning against unfettered discretion being exercised under the guise of investigation.
Agreeing in substance, the court held that for offences punishable with imprisonment of up to seven years, the police must first satisfy the twin requirements under Section 35(1)(b) -- there must be a “reason to believe” that the person committed the offence, and at least one of the necessity conditions, such as preventing further offence, tampering with evidence, or ensuring presence, must exist. Even then, arrest is not automatic.
The bench stressed that a police officer must consciously ask whether arrest is truly necessary before taking such a step, and must record reasons in writing either for making an arrest or for issuing a notice under Section 35(3). “An investigation can go on even without an arrest,” underscored the court, noting that the law itself provides inbuilt safeguards to protect personal liberty.
Significantly, the court held that a notice under Section 35(3) to cooperate with the investigation is the norm in offences punishable up to seven years, and that arrest under Section 35(6) - which allows arrest if the person fails to comply or if new circumstances arise, even after issuance of such notice, can only be resorted to sparingly. If a person complies with the notice, Section 35(5) creates an implied prohibition against arrest, unless fresh circumstances emerge and are duly recorded.
The court also clarified that even non-compliance with a notice does not automatically justify arrest. Any subsequent arrest must be based on new material that was not available when the notice was issued, reinforcing that deprivation of liberty cannot be mechanical or punitive in nature.
The bench endorsed earlier rulings in Arnesh Kumar Vs State of Bihar (2014) and Satender Kumar Antil Vs CBI (2022), holding that the BNSS provisions must be read harmoniously with Article 21 of the Constitution. It also approved the Bombay High Court’s interpretation of Section 35, rejecting claims of inconsistency.
Importantly, the Supreme Court cautioned against treating arrest as a default investigative tool, observing that statutory discretion must be exercised with circumspection and restraint. “Even if the conditions mentioned under Section 35(1)(b) are in existence, there can be no mandatory arrest,” the bench said.
Legal experts say the verdict sends a strong signal to law enforcement agencies that personal liberty cannot be sacrificed at the altar of convenience, and that compliance with statutory safeguards under the BNSS must be “in letter and spirit”.