NEW DELHI: The Supreme Court has ruled that police officers cannot arrest an accused person simply because they are legally empowered to do so, stressing that custody should be used only when it is essential for an investigation.
A bench comprising Justices MM Sundresh and NK Singh observed that arrest should not be resorted to merely for questioning. Instead, it must be based on strict necessity and objective reasons.
Referring to provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the court said that in cases involving offences punishable with imprisonment of up to seven years, issuing a notice under Section 35(3) is the general rule.
“The power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS must be interpreted as one of strict objective necessity, and not as a matter of convenience for the police officer. It does not mean that an arrest can be made merely to ask questions,” the bench said.
The court underlined that arrest is only a statutory discretion meant to facilitate investigation and is not mandatory in every case.
Senior advocate Sidharth Luthra, assisting the court as amicus curiae, submitted that issuing a notice under Section 35(3) is an absolute requirement and cannot be bypassed merely by recording reasons for arrest.
The bench agreed, noting that investigations can proceed even without taking the accused into custody. It said that while collecting evidence, a police officer must first consider whether arrest is truly necessary.
“Before making an arrest, the officer must ask himself whether such action is required. This safeguard exists because the power to arrest remains available even if it is not exercised at an early stage,” the court said.
Summing up its findings, the bench held that arrest is a discretionary power intended to aid investigation and should not be treated as compulsory.
“Even if the conditions for arrest under Section 35(1)(b) are met, it should not be carried out unless it is absolutely warranted,” the court added.
