Introduction
Registration of an FIR is often misunderstood as an automatic command to arrest the accused. It is not.
An FIR sets the criminal law in motion and ordinarily initiates investigation; it does not itself establish guilt, nor does it automatically require the arrest of every person named in it. The power to arrest and the necessity of arrest are distinct questions.
Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), particularly Section 35, the police possess significant powers of arrest without warrant. But those powers are accompanied by important conditions and safeguards. The Supreme Court has recently reiterated that, under Section 35(1), the power of arrest is discretionary and not an automatic consequence of registration of an FIR.
The central principle may therefore be stated simply:
An FIR authorises investigation; it does not, by itself, mandate arrest.
FIR And Arrest Are Two Different Stages
The criminal process should be understood as a sequence:
Information of cognizable offence
↓
Registration of FIR
↓
Investigation
↓
Collection of evidence
↓
Assessment of necessity of arrest
↓
Arrest, if legally justified
↓
Production before Magistrate, where required
The registration of the FIR and the decision to arrest serve different purposes.
The FIR answers:
What information has been received concerning the alleged offence?
Arrest answers:
Is taking this particular person into custody legally necessary?
Confusing these two questions creates the danger of arbitrary arrest.
Section 35 BNSS: The Central Provision
Section 35 BNSS is the principal provision governing when police may arrest without a warrant.
For offences punishable with imprisonment that may extend to seven years, arrest is subject to important conditions. The officer must have reason to believe, based on the complaint, information or suspicion, that the person committed the offence and must be satisfied that arrest is necessary for one or more statutory purposes.
Those purposes include:
- preventing further offences;
- conducting proper investigation;
- preventing disappearance or tampering with evidence;
- preventing inducement, threat or promise to persons acquainted with the facts; or
- ensuring the person’s presence before the court when required.
The officer must record the reasons for arrest in writing.
Equally importantly, where arrest is not required, the officer must record reasons for not making the arrest.
“May Arrest” Does Not Mean “Must Arrest”
The wording of Section 35 is significant.
The statute says that the police officer “may” arrest in the circumstances specified.
The Supreme Court has recently emphasised that the use of the word “may” indicates that the power of arrest is discretionary and optional; it is not an inevitable consequence of the FIR.
Therefore, the following proposition is incorrect:
“An FIR has been registered; therefore, the accused must be arrested.”
The correct proposition is:
“An FIR has been registered; the police must investigate and determine, according to Section 35 BNSS, whether arrest is legally necessary.”
The Necessity Test
For offences falling within Section 35(1)(b), the crucial question is necessity.
The officer should ask:
Is Arrest Necessary To Prevent Another Offence?
If there is a genuine likelihood of continuing criminal conduct, this may support arrest.
Is Arrest Necessary For Proper Investigation?
The officer must consider whether custody is genuinely required for investigative purposes.
Is There A Risk Of Destruction Or Tampering With Evidence?
If the accused is likely to destroy, conceal or manipulate material evidence, arrest may become necessary.
Is There A Risk Of Influencing Witnesses?
Threatening or inducing witnesses can justify arrest where the statutory conditions are satisfied.
Is Arrest Necessary To Secure Presence Before The Court?
If the person’s presence cannot reasonably be ensured otherwise, this may support arrest.
These are statutory considerations, not merely administrative preferences.
Registration Of FIR Is Not A Finding Of Guilt
An FIR represents the beginning of investigation.
At the FIR stage:
- the allegations may not yet be proved;
- witnesses may not yet have been examined;
- documents may not yet have been verified;
- the accused may not have been questioned;
- the investigating officer may not yet have collected independent evidence.
Therefore, arrest merely because someone’s name appears in an FIR can produce serious injustice.
The accused remains entitled to the presumption of innocence until guilt is established according to law.
Arrest Should Not Become A Punishment Before Trial
This is perhaps the most important constitutional dimension.
An arrest deprives a person of liberty.
It may result in:
- detention;
- loss of employment;
- social stigma;
- disruption of family life;
- reputational damage;
- financial loss; and
- difficulty in conducting one’s affairs.
Consequently, arrest cannot properly be treated as a pre-trial punishment.
The purpose of arrest must remain connected with the legitimate purposes of criminal procedure.
Investigation is the purpose; punishment before conviction is not.
Notice Of Appearance: An Important Safeguard
Section 35(3) BNSS provides that where arrest is not required under Section 35(1), the police officer shall issue a notice directing the person to appear before the officer or at another specified place.
This is an important statutory safeguard.
The system therefore contemplates:
Investigate without unnecessary custody where custody is not required.
Under Section 35(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, a person who complies with a notice of appearance cannot be arrested unless written reasons are recorded.
Compliance With Notice Has Legal Significance
A person who receives a notice should not ignore it.
Section 35(4) makes compliance with the notice a duty. If the person fails to comply or refuses to identify himself, Section 35(6) permits arrest, subject to the statutory framework and court orders where applicable.
Thus, the notice mechanism is not merely a formality.
It creates a balance:
Police need the accused’s cooperation for investigation.
↕
Accused need protection against unnecessary custodial arrest.
Arrest As A Tool Of Investigation, Not An Instrument Of Harassment
The police undoubtedly require effective powers.
An investigating officer may legitimately need to arrest an accused where:
- custodial interrogation is genuinely necessary;
- evidence is at risk;
- witnesses require protection;
- further offences are likely;
- the accused is evading investigation; or
- statutory conditions otherwise justify arrest.
But the existence of police power does not mean that the power can be used arbitrarily.
The Supreme Court’s recent interpretation of Section 35 reinforces the distinction between power to arrest and necessity to arrest.
The Danger Of “Arrest First, Investigate Later”
A problematic approach would be:
FIR registered → accused named → immediate arrest → evidence collected afterwards.
That reverses the proper logic of the investigation in cases where arrest is not legally necessary.
A more appropriate approach is:
FIR registered → investigate → assess evidence and statutory necessity → arrest if justified.
Of course, where the circumstances themselves establish an immediate need for arrest, the police need not wait for the entire investigation to be completed.
The issue is necessity, not an artificial rule that arrest can occur only after complete investigation.
Misuse Of Arrest Power
Misuse can occur in different forms.
(a) Arrest Merely Because The Accused Is Named In The FIR
Being named is not, by itself, a statutory necessity ground.
(b) Arrest To Humiliate
Arrest cannot legitimately be used as a means of public humiliation or intimidation.
(c) Arrest To Force A Settlement
Police custody must never become a mechanism for compelling settlement of a dispute.
(d) Arrest To Extract A Confession
The investigation must comply with constitutional and statutory safeguards; arrest cannot be used as coercion for obtaining an admission of guilt.
(e) Arrest To Punish Before Trial
Pre-trial custody cannot become an informal substitute for conviction.
(f) Selective Arrest
Arresting one accused while deliberately protecting similarly situated persons can raise questions about fairness and investigation.
(g) Arrest After Notice Compliance Without Recorded Necessity
Where a person has complied with a Section 35 notice, subsequent arrest requires the statutory justification contemplated by Section 35(5).
Misuse Can Also Occur Through Non-Arrest
The abuse of police discretion does not always favour the accused.
The opposite problem can arise where the police deliberately avoid arresting a powerful or influential accused, despite circumstances requiring lawful consideration of arrest.
Thus, police discretion can be abused in two opposite ways:
| Misuse | Consequence |
|---|---|
| Unnecessary arrest | Harassment and unlawful deprivation of liberty |
| Improper non-arrest | Frustration of investigation and possible intimidation of witnesses |
| Selective arrest | Unequal treatment |
| Selective non-arrest | Favouritism |
| Arrest to compel settlement | Abuse of criminal process |
| Arrest to protect investigation | Legitimate exercise of power |
The objective must be neutral and evidence-based investigation.
What About Serious Offences Punishable With More Than Seven Years?
Section 35 has a different statutory structure for cognizable offences punishable with imprisonment that may extend to more than seven years or with death.
Where credible information indicates commission of such an offence and the officer has reason to believe on the basis of that information that the person committed it, Section 35(1)(c) provides a distinct basis for arrest without warrant.
This distinction is important.
The safeguards applicable to offences within the up-to-seven-year category should not simply be transplanted mechanically to every offence.
The precise statutory classification and punishment prescribed for the alleged offence must therefore be examined.
Bailable And Non-Bailable Offences
The fact that an offence is non-bailable does not mean that arrest is automatically compulsory in every situation.
Similarly, the fact that an offence is bailable does not mean that every investigative step becomes unnecessary.
The concepts must be kept separate:
Bailable/non-bailable
Primarily concerns the legal framework governing release on bail.
Cognizable/non-cognizable
Concerns police powers of investigation and arrest without warrant, subject to the statute.
Necessity of arrest
Concerns whether taking the particular person into custody is justified under Section 35 and the surrounding circumstances.
These are related but distinct concepts.
Written Reasons: A Major Accountability Safeguard
Section 35 expressly requires written reasons in relevant circumstances.
The officer must record reasons for making an arrest where the statutory necessity test applies.
The officer must also record reasons where arrest is not made in circumstances covered by Section 35(1)(b).
This creates an important accountability mechanism.
It prevents the decision from being reduced to:
“I felt arrest was necessary.”
The officer should be able to demonstrate:
Which statutory ground existed, what facts supported it, and why custody was necessary.
The Role Of The Supervisory Police Officer
Senior police officers have an important role in preventing arbitrary arrest.
Supervisory authorities should scrutinise:
- whether arrest was necessary;
- whether Section 35 conditions were satisfied;
- whether reasons were recorded;
- whether notice should have been issued;
- whether the accused complied with the notice;
- whether the investigation actually required custody; and
- whether similarly situated accused persons were treated consistently.
A professional police organisation should not measure investigative success by the number of arrests.
The objective is:
quality investigation, lawful evidence collection and prosecution of the guilty—not maximum arrests.
Arrest Does Not Automatically Strengthen The Prosecution Case
There is sometimes an assumption that arrest makes the prosecution case stronger.
That is incorrect.
A strong prosecution case depends upon:
- reliable witnesses;
- admissible evidence;
- scientific evidence;
- documentary material;
- properly conducted searches and seizures;
- lawful investigation;
- chain of custody;
- credible identification; and
- a coherent evidentiary narrative.
An unnecessary arrest may actually create avoidable litigation concerning violation of statutory and constitutional safeguards.
Duties After Arrest
Where arrest is lawfully made, the BNSS contains additional safeguards.
The BNSS separately addresses:
- procedure and duties of the arresting officer under Section 36;
- the right of the arrested person to meet an advocate during interrogation under Section 38;
- informing the arrested person of the grounds of arrest and the right to bail under Section 47;
- informing relatives or friends about the arrest under Section 48;
- production before the appropriate authority under Section 57; and
- the prohibition on detention beyond the statutory period without appropriate judicial authority under Section 58.
Arrest therefore marks the beginning of another set of legal safeguards; it is not the end of the accused’s rights.
The Magistrate’s Role Is Crucial
Judicial scrutiny becomes particularly important once an accused is arrested.
The Magistrate must ensure that custody is not treated as an automatic administrative consequence of the FIR.
The judicial process provides an independent check on police power through:
- production of the arrested person;
- consideration of police/remand requests;
- bail jurisdiction;
- scrutiny of the legality of detention; and
- appropriate directions where statutory safeguards have not been followed.
Thus:
Police power to arrest is subject to judicial supervision.
Arrest And Bail Are Not The Same Question
A common misconception is:
“If the accused has not been arrested, he cannot get bail.”
That is not necessarily correct.
Pre-arrest protection may be available in appropriate cases under the BNSS’s bail provisions, depending on the facts and statutory conditions.
Conversely, arrest does not mean that the accused will necessarily remain in custody until trial.
The law distinguishes between:
arrest → custody → remand → bail → trial.
Each stage has its own legal requirements.
What Should An Accused Person Do After Receiving A Notice?
A person receiving a lawful notice under Section 35 should take it seriously.
The person should:
- read the notice carefully;
- verify the FIR/case details;
- comply with the specified appearance requirements;
- preserve proof of appearance;
- provide documents through lawful channels;
- avoid intimidating or contacting witnesses improperly; and
- seek legal advice where necessary.
Ignoring a lawful notice can create additional complications because Section 35(6) permits arrest in specified circumstances where the person fails to comply.
A Balanced Model Of Police Discretion
The correct approach can be visualised as follows:
FIR registered
↓
Is the alleged offence cognizable?
↓
What is the punishment prescribed?
↓
Does Section 35 permit arrest without warrant?
↓
Is arrest actually necessary?
↓
YES → Record statutory reasons → Arrest according to law
NO → Issue notice under Section 35(3) → Investigate without unnecessary custody
This is the essence of responsible police discretion.
The Constitutional Dimension
Arrest directly affects personal liberty under Article 21 of the Constitution.
The police therefore have a dual responsibility:
Protect Society
They must effectively investigate offences, protect victims and witnesses, prevent further crime and bring offenders to justice.
Protect Liberty
They must ensure that a person is not deprived of liberty unnecessarily or arbitrarily.
These are not competing objectives.
A professional criminal justice system must achieve both.
The Golden Rule
The entire subject can be reduced to one principle:
“Arrest because it is necessary—not merely because it is possible.”
The power to arrest is an important investigative tool, but it should not become a reflex following registration of an FIR.
Equally, non-arrest should not become a device for shielding an accused.
The decision must be:
- lawful;
- objective;
- individualised;
- supported by reasons;
- proportionate to the investigative need; and
- open to judicial scrutiny.
Key Judicial Precedents
The legal principle that an FIR does not automatically mandate arrest is firmly rooted in landmark Supreme Court jurisprudence that mirrors the safeguards under Section 35 of the BNSS (formerly Sections 41 and 41A of the CrPC).
In Joginder Kumar v. State of U.P. (1994), the Supreme Court established the foundational rule that the existence of the power to arrest is distinct from the legal justification for exercising it. This principle was operationalized in the landmark ruling of Arnesh Kumar v. State of Bihar (2014), where the Court mandated a strict necessity checklist for offences punishable by up to seven years, holding that arrests must not be made in a routine or mechanical manner.
Further reinforcing these protections, the Court held in Siddharth v. State of U.P. (2021) that an accused who has cooperated throughout an investigation should not be arrested merely because a charge sheet is being submitted, while Satender Kumar Antil v. CBI (2022) reiterated that arbitrary deprivation of liberty violates Article 21 and warned investigating agencies against treating arrest as a default procedure.
Conclusion
The registration of an FIR marks the beginning of criminal investigation, not the automatic beginning of incarceration.
Section 35 BNSS carefully structures the police power of arrest. In cases falling within its necessity-based framework, the officer must consider whether arrest is required for preventing further offences, conducting proper investigation, protecting evidence, preventing witness influence, or ensuring the accused’s presence before the court. The statute also requires written reasons and provides for notice of appearance where arrest is not required.
The Supreme Court’s recent interpretation is especially significant: the power to arrest under Section 35(1) is discretionary and optional, not automatic merely because an FIR has been registered.
The danger lies at both extremes:
Unnecessary arrest converts investigation into harassment; improper non-arrest converts discretion into favouritism.
The proper standard is therefore neither “arrest everyone named in the FIR” nor “arrest no one until the investigation is complete.”
It is:
“Investigate fairly, assess necessity objectively, arrest only when the law and circumstances require it, and record the reasons.”
That is the point at which police authority becomes lawful discretion rather than misuse of power.
