Police Cannot Arrest Accused To ‘Simply Ask Questions’: Supreme Court

Last Updated:February 06, 2026, 20:37 IST

An arrest is a discretionary tool for facilitating proper investigation, such as evidence collection, and should not be treated as mandatory, Supreme Court said.

In a recent ruling, the Supreme Court said that police cannot merely arrest an accused for the purpose of questioning. The Court emphasized that an arrest by a police officer is a discretionary statutory power, not a mandatory requirement.

The bench, comprising Justices M M Sundresh and N K Singh, clarified that the power to arrest under the provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, should be viewed as a stringent objective necessity, rather than a convenient option for the police.

“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, qua an offence punishable with imprisonment up to seven years, cannot proceed effectively without taking the concerned individual into custody. Any interpretation to the contrary would clearly frustrate the purpose and legislative intent of Sections 35(1)(b) and Sections 35(3) to 35(6) of the BNSS, 2023," the court’s order reads.

This decision came while the bench was hearing an appeal against an Allahabad High Court order and deliberating on whether notices under Section 35(3) of the BNSS, 2023, are mandatory in all cases involving offences punishable with imprisonment up to seven years.

The Supreme Court highlighted that the power of arrest under these provisions is an exception, not a routine procedure, and police officers must exercise caution and restraint. An arrest is a discretionary tool for facilitating proper investigation, such as evidence collection, and should not be treated as mandatory.

“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," it said.

“For effecting an arrest, qua an offence punishable with imprisonment up to seven years, the mandate of Section 35(1)(b)(i) of the BNSS, 2023 along with any one of the conditions mentioned in Section 35(1)(b)(ii) of the BNSS, 2023 must be in existence," it said.

The bench’s order, issued in January but uploaded recently, stated that even if conditions for arrest under Section 35(1)(b) of the BNSS, 2023, are present, an arrest should only be made if absolutely necessary.

The Supreme Court noted that a police investigation typically begins with the recording of information about an offence. It involves collecting evidence and ends with forming an opinion for filing a chargesheet. An arrest is an optional and discretionary act by a police officer, depending on the specifics of the case.

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