Supreme Court Mandates Notice Before Arrest for Offences Punishable Up to 7 Years Under BNSS
The Supreme Court of India has delivered a landmark judgment, reinforcing that police cannot make arrests merely to "simply ask questions" in cases involving offences punishable with imprisonment up to seven years. The apex court emphasized that the power of arrest must be interpreted as a strict objective necessity, not a subjective convenience for law enforcement officers.
Notice Under BNSS Section 35(3) is the Rule, Arrest is the Exception
In a significant ruling, a bench comprising Justices M M Sundresh and N K Singh held that police must serve notice under section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) before arresting individuals accused of offences carrying sentences up to seven years. The court clarified that such notice is the rule, while arrest under section 35(6) read with section 35(1)(b) of BNSS is a clear exception.
The judgment stated, "An arrest by a police officer is a mere statutory discretion which facilitates him to conduct proper investigation, in the form of collection of evidence, and therefore shall not be termed as mandatory." The bench added that police officers must ask themselves whether an arrest is truly necessary before proceeding with such action.
Constitutional Safeguards and Police Discretion
The Supreme Court recalled that the procedure under section 35(6) of BNSS was introduced on the touchstone of Article 21 of the Constitution of India, which guarantees protection of life and personal liberty. These inbuilt safeguards must be complied with by police officers in letter and spirit.
Even when circumstances warranting arrest exist under section 35(1)(b) of BNSS, the court clarified that arrest should not be undertaken unless absolutely necessary. Police officers are expected to be circumspect and slow in exercising this power, ensuring it serves as an objective necessity rather than subjective convenience.
Investigation Can Proceed Without Arrest
The judgment emphasized that investigation can continue effectively even without making an arrest. While collecting evidence to form an opinion about the commission of a cognizable offence, a police officer must question the necessity of arrest. This safeguard exists because the power to arrest remains available even after an officer records reasons in writing for not doing so at an earlier stage.
The court explained, "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, regarding an offence punishable with imprisonment up to seven years, cannot proceed effectively without taking the concerned individual into custody."
Legal Framework and Conditions for Arrest
Section 35(1)(b) of BNSS outlines conditions under which police officers can make arrests without warrant for offences with less than seven years imprisonment. Section 35(6) addresses arrest when a person fails to comply with notice terms or is unwilling to identify themselves.
The Supreme Court specified that when making an arrest after issuing notice under section 35(3), circumstances existing at the time of notice issuance should not be considered. Arrest under section 35(6) must be based on materials and factors not available to the police officer when the notice was issued.
Any interpretation contrary to these principles would frustrate the purpose and legislative intent of sections 35(1)(b) and 35(3) to 35(6) of BNSS, the court concluded, reinforcing the protection of individual liberties within the criminal justice system.
