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NEW DELHI: Noting that an arrest can’t be made simply because it is lawful for the police officer to do so, SC on Thursday held that an investigating agency should not take an accused into custody for asking questions and the same should be done only when it is necessary for the probe.Enumerating various sections of the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023, a bench of Justices M M Sundresh and N K Singh said a notice under Section 35(3) of the law to an accused or any individual concerned, qua offences punishable with imprisonment of up to 7 years, is the rule.“The power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023 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,” the bench said.Arrest mere statutory discretion to facilitate investigation, says the top courtSenior advocate Sidharth Luthra, who is assisting the court as amicus curiae, told the court the requirement to issue a notice under Section 35(3) is absolute and cannot be bypassed solely by recording reasons for arrest.“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 bench said.“On the basis of the interpretation given by us, we conclude as follows: 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. Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise,” it said.“…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’s absolutely warranted,” it said.
