Police can’t arrest to 'simply ask questions': SC mandates BNSS notice for offences

The Supreme Court has reaffirmed that arrest should not be the default response in criminal cases carrying a maximum punishment of up to seven years, ruling that police officers must ordinarily issue a formal notice to the accused before taking them into custody under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

A Bench comprising Justices M M Sundresh and N K Singh underscored that the power to arrest is discretionary, not compulsory, and must be exercised with restraint. The court stressed that arrest is merely one of the tools available to investigators and not an automatic step in the criminal process.

“Arrest is not an obligation imposed on the police officer,” the Bench observed, adding that officers must consciously assess whether custody is genuinely required for the investigation. According to the court, the guiding question should always be whether arrest is truly necessary, not whether it is merely permissible under the law.

The ruling came while deciding an appeal against a 2021 judgment of the Allahabad High Court. In its order dated January 15, the Supreme Court clarified the scope of Section 35 of the BNSS, which governs arrest without warrant.

The court made it clear that issuing a notice under Section 35(3)  requiring the accused to appear before the investigating officer is the standard procedure in cases where the offence is punishable with imprisonment of up to seven years. Arrest, under Section 35(6) read with Section 35(1)(b), should be treated as an exception rather than the rule.

Section 35(1)(b) outlines specific conditions under which police may arrest a person without a warrant in less serious offences, while Section 35(6) allows arrest if the person fails to comply with the notice or refuses to identify themselves.

Recalling earlier rulings, the Supreme Court noted that these provisions were designed to align criminal procedure with the constitutional guarantee of personal liberty under Article 21. The safeguards built into the law are not optional, the Bench said, and must be followed both in form and substance.

Importantly, the court clarified that even if the legal grounds for arrest exist, custody should still be avoided unless the situation leaves no alternative. Police officers, it said, must act cautiously and avoid hasty decisions when invoking their arrest powers.

The judgment further drew a clear line between the circumstances prevailing at the time a notice is issued and those that may later justify arrest. The court held that once a notice under Section 35(3) has been served, the police cannot rely on the same facts to later arrest the person. Any subsequent arrest must be based on fresh material or developments that were not known earlier.

“In simple terms, arrest after issuing notice must be supported by new reasons,” the Bench explained.

The court also emphasised a fundamental principle of criminal jurisprudence that investigation does not depend on arrest. It noted that evidence collection and inquiry can continue even when the accused is not in custody. The law, the court said, deliberately provides flexibility so that liberty is not curtailed unnecessarily.

The Supreme Court cautioned that an arrest cannot be used as a routine method for questioning or as a matter of convenience for investigators. Instead, police must objectively determine whether the probe would be rendered ineffective without taking the person into custody.

Allowing arrests merely on subjective satisfaction, the court warned, would defeat the very purpose of the BNSS provisions meant to protect individual freedom.

Any interpretation that dilutes these safeguards, the Bench concluded, would undermine the legislative intent behind Sections 35(1)(b) and 35(3) to 35(6) of the BNSS, 2023.

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