Reaffirmation of Personal Liberty and Due Process
In a significant reaffirmation of personal liberty and due process, the Supreme Court of India has once again made it clear that arrest should be the exception, not the norm, particularly in cases where the alleged offence is punishable with imprisonment of up to seven years.
The Court underscored that under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—which has replaced the Criminal Procedure Code—Section 35(3) makes it mandatory for the police to issue a notice of appearance instead of effecting routine arrests in such cases, unless strict legal conditions justify custody.
This ruling is not merely a procedural reminder. It is a constitutional statement that liberty cannot be sacrificed at the altar of convenience or routine policing.
Supreme Court Ruling: Background And Context
The Supreme Court ruling arose from the case Joginder Kumar v. State of Uttar Pradesh, which was revisited in the appeal against the Allahabad High Court’s July 1, 2021 judgment.
Case Title And Parties
Allahabad High Court Judgment (01 July 2021)
- Case Title: State of Uttar Pradesh v. [Name of Accused]
- Note: The exact accused name varies depending on the FIR in question; the Supreme Court judgment anonymized the accused in reporting.
Supreme Court Appeal
- Case Style: [Accused] v. State of Uttar Pradesh
- Origin: Arising out of the Allahabad High Court’s 2021 ruling
Bench Composition
| Judge Name |
|---|
| Justice M.M. Sundresh |
| Justice N. Kotiswar Singh |
The Core Principle: Arrest Is Not Automatic
The Supreme Court reiterated a long-standing constitutional principle:
Arrest is a serious intrusion into personal liberty and must not be used mechanically.
For offences punishable with a maximum sentence of seven years or less, arrest cannot be automatic merely because an FIR has been registered or allegations have been made. The police must first evaluate:
- Is arrest necessary for investigation?
- Is there a risk of the accused absconding?
- Is there a possibility of tampering with evidence?
- Is there a real threat of influencing witnesses?
- Is arrest required to prevent further offences?
If the answer to these questions is no, arrest becomes illegal and unconstitutional.
Section 35(3) BNSS: Notice of Appearance Is Mandatory
Under Section 35(3) BNSS, the law now expressly mandates that:
- When arrest is not necessary, the police must issue a notice of appearance to the accused.
- The accused is legally bound to cooperate with the investigation and appear as directed.
- Non-compliance with the notice, and not mere suspicion, can later justify arrest.
The Supreme Court made it clear that failure to issue this notice is not a minor lapse. It strikes at the root of procedural fairness and renders the arrest vulnerable to being declared unlawful.
Why This Ruling Matters
1. Protection of Personal Liberty
The judgment reinforces Article 21 of the Constitution, which guarantees that no person shall be deprived of personal liberty except according to procedure established by law—a procedure that must be fair, just, and reasonable.
2. Curbing Misuse of Arrest Powers
For decades, arrests in India have often been used as:
- A tool of harassment
- A means of public humiliation
- An instrument of coercion rather than investigation
The Court’s reminder seeks to dismantle this culture.
3. Shifting Policing From Force to Fairness
The BNSS framework, as interpreted by the Court, promotes:
- Investigation based on evidence, not custody
- Summons and notices over handcuffs
- Accountability over unchecked discretion
Continuity With Earlier Jurisprudence
While this ruling is rooted in BNSS, it is firmly aligned with earlier landmark decisions where the Supreme Court had warned that:
- Arrest is not synonymous with investigation
- Police officers must record reasons justifying arrest
- Magistrates must scrutinize arrests, not approve them mechanically
What is new is that BNSS has now codified these principles, leaving little room for interpretative abuse.
Duties Of The Police And Magistracy
Police Responsibilities
- Apply mind before arrest
- Record written reasons if arrest is deemed necessary
- Issue Section 35(3) notice as a rule
- Respect the dignity and liberty of citizens
Judicial Oversight
- Magistrates must question why arrest was made
- Mechanical remand orders defeat the purpose of the law
- Courts are duty-bound to act as guardians of liberty
Consequences Of Non-Compliance
The Supreme Court cautioned that failure to follow Section 35(3) BNSS may result in:
| Potential Consequence | Impact |
|---|---|
| Arrest being declared illegal | Invalidation of custody |
| Grant of immediate bail | Restoration of personal liberty |
| Departmental action against erring officers | Administrative accountability |
| Strengthened claims for violation of fundamental rights | Enhanced constitutional remedies |
A Message To Citizens
This judgment empowers citizens by reminding them that:
- Arrest is not inevitable
- Cooperation with investigation does not mean surrendering liberty
- The law stands on the side of reason, not fear
Conclusion: Liberty As The Default, Arrest As The Last Resort
By declaring that arrest is an exception, not the rule, and by enforcing the mandatory nature of Section 35(3) BNSS, the Supreme Court has reaffirmed a vital democratic truth:
In a constitutional republic, the State investigates first and incarcerates only when absolutely necessary.
This ruling is a powerful step toward a criminal justice system that values human dignity, constitutional morality, and rule of law over reflexive coercion.
