Police cannot make arrest to ‘simply ask questions’: Supreme Court mandates notice under BNSS for offences punishable by up to 7 years in prison

The question arose in an appeal challenging a July 1, 2021, judgment of the Allahabad High Court. The January 15 order said, “A notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua an offence punishable with imprisonment up to 7 years, is the rule, while an arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023, is a clear exception.”

Section 35(1)(b) lays down the conditions under which a police officer can make arrests without warrant in cases with less than seven years imprisonment and section 35(6) speaks of arrest where the person fails to comply with the terms of the notice or is unwilling to identify himself.

The SC recalled that it had earlier also said that “the procedure contained in Section 35(6) of the BNSS, 2023 has been introduced on the touchstone of Article 21 of the Constitution of India, 1950″. These inbuilt safeguards are required to be complied with by the police officer, in letter and spirit.

The top court clarified that “even if the circumstances warranting an arrest of a person are available in terms of the conditions mentioned under Section 35(1)(b) of the BNSS, 2023, the arrest shall not be undertaken, unless it absolutely warranted” and the “police officer is expected to be circumspect and slow in exercising the said power”.

It added that while making such an arrest “after the stage of issuing a notice seeking presence under Section 35(3) of the BNSS, 2023, the circumstances and factors that were in existence at the time of issuing the said notice shall not be taken into consideration by a police officer while making an arrest subsequently”.

“In other words, for effecting an arrest under Section 35(6) of the BNSS, 2023, it must be based upon materials and factors which were not available with the police officer at the time of issuing a notice under Section 35(3) of the BNSS, 2023,” the court said.

‘Investigation can go on even without an arrest’

The judgment said, “Suffice it is to state that an investigation can go on even without an arrest. While undertaking the exercise of collecting the evidence for the purpose of forming his opinion over the commission of a cognizable offence, a police officer shall pose a question, to himself, on the necessity of an arrest. This safeguard is provided as, in any case, the power to arrest an accused person is always available with a police officer even after he records his reasons, in writing, for not doing so at an earlier stage.”

The SC said the power of arrest under the provisions “must be interpreted as a strict objective necessity, and not a subjective convenience for the police officer”.

“It does not mean the police officer can arrest to simply ask questions. However, it means that the police officer must satisfy himself that the investigation, qua an offence punishable with imprisonment up to seven years, cannot proceed effectively without taking the concerned individual into custody.”

“Any interpretation to the contrary would clearly frustrate the purpose and legislative intent of Sections 35(1)(b) and Sections 35(3) to 35(6) of the BNSS, 2023,” it added.