SC: Arrest mere legal discretion, not mandatory

No person should be arrested for an alleged offence punishable with imprisonment of up to seven years unless such arrest is “absolutely warranted”, the Supreme Court has held, underscoring that issuing a notice to cooperate with the investigation is the rule, while arrest must remain a clear exception.

- Utkarsh Anand

In what is among the first authoritative interpretations of the arrest-related provisions under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 — which replaced the Code of Crin nal Procedure from July 1, 2024 — a bench of justices MM Sundresh and N Kotiswar Singh ruled that arrest is not mandatory even when the law empowers the police to do so. The court clarified that the power of arrest is a statutory discretion meant to facilitate investigation, not an obligation to be exercised routinely.

“An arrest by a police officer is amere statutory discretion which facilitates him to conduct investigation and therefore shall not be termed as mandatory,” said the bench, laying down a detailed framework governing arrests for offences punishable up to seven years.