The Supreme Court has said that an individual cannot be arrested simply because he/she asks questions or seeks clarification and this clarifies that authority of arrest that is in the hands of the police officers is a matter of statutory choice and not a compulsory measure. The court has stressed that the warrant of arrest must be done in the case of investigative necessity.
These were observed by a bench headed by Justices M.M Sundresh and N.K Singh who were judging an appeal of a high court order made by the Allahabad High Court. The court was looking into the question as to whether the bringing out of notices under the Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is mandatory in every case involving an offence that carries a sentence of imprisonment up to a maximum of seven years.
The bench believed that the authority of arrest as stipulated in BNSS, should be viewed as obligative need and not a personal convenience of the investigator. It noted that a law enforcer cannot arrest another person to interrogate him or her. Rather, the officer should be contented that an investigation into an offence that could attract a maximum of seven years of imprisonment is impossible to conduct successfully without arresting the individual.
The court cautioned against any different interpretation as such would be a nullification of the legislative intent of Sections 35 and other provisions regarding the BNSS, 2023. It also added that arrest in response to a notice made under Section 35 is not ordinary but an exception and officers needed to exercise this authority with care and restraint.
Once again following the same path, the Supreme Court clarified that arrest is an enabling measure that could assist investigation, especially in gathering of evidence, but cannot be made binding. A police officer should determine the necessity of custody before arresting the suspect.
The bench held that where the offence is punishable by imprisonment (up to 7 years) the terms specified in Section 35 of the BNSS, 2023 have to be fulfilled to the letter prior to arrest being made.
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