Supreme Court Rules: Police Cannot Arrest Solely for Questioning

New Delhi: In a landmark ruling, the Supreme Court has clarified that police cannot arrest an individual merely for questioning. The court emphasized that for offenses punishable with imprisonment of up to seven years, authorities must first issue a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, instead of resorting to arrest.

Arrest Only When Necessary
A bench comprising Justices M.M. Sundresh and N.K. Singh stated that law enforcement agencies should take a person into custody only when it is strictly necessary for the investigation. Arrest should not be used as a tool to facilitate questioning. The ruling interprets multiple provisions of the BNSS, 2023, related to arrest and the powers of the police.

Notice Mandatory for Cases with Less than Seven Years’ Imprisonment
According to Live Law, the bench clarified that for any offense punishable by imprisonment of up to seven years, a notice under Section 35(3) must be issued to the accused or relevant person. Arrest is not a substitute for this legal requirement.

Police Powers Explained
The court explained that Sections 35(1)(b) and 35(6) of BNSS, 2023, should be understood as empowering the police only when there is a strict, objective necessity. It does not give officers discretion to arrest for mere questioning. The bench stressed that the investigation of an offense punishable with imprisonment of up to seven years should proceed effectively without taking the person into custody whenever possible. Any other interpretation would defeat the legislative intent of BNSS.

Written Justification Required
Senior advocate Siddharth Luthra, appearing as amicus curiae, highlighted that issuing a notice under Section 35(3) is mandatory and cannot be bypassed by merely recording reasons for arrest. The court agreed, adding that the reasons for arrest must be documented in writing. Before taking anyone into custody, a police officer must ask themselves whether arrest is truly necessary, even if prior conditions under Section 35(1)(b) are met.

Key Takeaway
The Supreme Court concluded that arrest under BNSS, 2023, is a discretionary power for law enforcement to facilitate investigation and evidence collection—it is not compulsory. Police officers must critically evaluate whether arrest is essential in each case and proceed only when absolutely necessary.