A Constitutional and Jurisprudential Analysis
Introduction
Whether a High Court can issue a permanent order restraining the arrest of an individual is a nuanced question lying at the crossroads of constitutional safeguards, statutory authority, and judicial interpretation. While High Courts possess wide inherent powers under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — BNSS), judicial consensus has long maintained that such powers do not extend to granting blanket or permanent immunity from arrest.
A permanent restraint on arrest would, in essence, paralyse the police’s statutory duty to investigate cognizable offences as mandated under Sections 154 and 157 CrPC (now Sections 173 and 176 BNSS). The debate, therefore, is not merely procedural—it touches the very heart of the constitutional balance between liberty and law enforcement.
Legal Framework
Article 226 of the Constitution of India
Article 226 empowers every High Court to issue writs—such as Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari—for the enforcement of fundamental rights and “for any other purpose.” This broad power allows judicial intervention where fundamental freedoms are threatened, yet its exercise must be judicial and principled, not administrative or anticipatory. The Supreme Court has repeatedly emphasized that though High Courts can quash proceedings under this Article, the power must be used judiciously to prevent misuse of legal process rather than to pre-empt legitimate investigation.
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
This section preserves the inherent powers of the High Court to make orders necessary to:
- Give effect to any order under the Sanhita,
- Prevent abuse of the process of any court, or
- Otherwise secure the ends of justice.
Functionally equivalent to Section 482 CrPC, it serves as a judicial safety valve. However, such power must be exercised with utmost caution, for it confers wide authority tempered by the duty of restraint.
Core Judicial Stance – Restraint on Interfering with Investigation
A fundamental tenet of Indian criminal jurisprudence is that the police possess both the right and duty to investigate cognizable offences. The judiciary, though constitutionally empowered, is expected to respect this statutory autonomy. A permanent restraint on arrest is viewed as a severe intrusion into executive function. Therefore, High Courts are discouraged from passing blanket “no arrest” or “no coercive steps” orders except in the rarest of rare cases, and even then, only as temporary relief pending adjudication of the petition.
Case Law Analysis
| Case Name | Key Principle Established |
|---|---|
| R.P. Kapur v. State of Punjab (AIR 1960 SC 866) | The Supreme Court held that inherent powers could be invoked only in three categories:
|
| State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) | The Court outlined seven illustrative categories where FIRs may be quashed. Extraordinary powers must be used sparingly and only in rarest of rare cases. If an FIR is quashed, arrest automatically becomes void. |
| Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122 | The Court reaffirmed the Bhajan Lal principles—High Courts may intervene only when allegations are baseless or proceedings are manifestly unjust, not to interfere with legitimate investigation. |
| State of Telangana v. Habib Abdullah Jeelani (2017) 2 SCC 779 | High Courts cannot issue blanket orders restraining arrest without quashing FIR. Such orders paralyze investigation and disrupt the balance between judiciary and police. |
| Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24 | Anticipatory bail cannot be perpetual; liberty must be balanced with investigative needs. Arrest protection should be conditional and time-bound. |
| M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra (2021) 6 SCC 116 | The Supreme Court held unequivocally that High Courts cannot pass general or blanket “no arrest” or “no coercive steps” orders. Such directions distort the investigative process. |
Distinction Between Permanent Restraint and Interim Reliefs
A clear distinction exists between a permanent restraint on arrest and temporary judicial relief. A de facto permanent restraint can arise only where the High Court quashes the FIR or criminal proceedings altogether—thus extinguishing the legal foundation for arrest. This occurs in exceptional circumstances such as:
- Allegations are inherently baseless,
- Proceedings are mala fide, or
- The dispute is purely civil in nature.
By contrast, anticipatory bail under Section 438 CrPC (now Section 482 BNSS) offers conditional protection from arrest, which remains subject to modification or cancellation. The Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) (2020) clarified that anticipatory bail, though not time-limited, does not confer absolute immunity.
Therefore, High Courts cannot issue perpetual “no arrest” orders under Article 226 or Section 528 BNSS. The only legitimate route to lasting protection lies in quashing proceedings—not bypassing lawful investigation.
Conclusion
From R.P. Kapur v. State of Punjab (1960) to M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra (2021), the judicial journey has consistently reinforced restraint and clarity. Each milestone—Bhajan Lal (1992), Zandu Pharmaceutical (2005), Habib Abdullah Jeelani (2017), and Chidambaram (2019)—emphasizes disciplined judicial boundaries.
The jurisprudence establishes that a High Court cannot issue a permanent or blanket order restraining arrest under Article 226 or Section 528 BNSS. To do so would intrude upon statutory investigation and disrupt the equilibrium between liberty and law enforcement. The only lawful means to achieve lasting restraint is through quashing of proceedings.
In essence, the High Court serves as a constitutional sentinel—guarding liberty without hindering lawful investigation. Its power functions as a precise judicial tool, wielded with caution to preserve justice. Liberty and law coexist not in conflict but in mutual reinforcement—each strengthening the foundation of a just constitutional order.
