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2. The consequential issue is: Whether in the absence of circumstances under Sections 35(1)(b)(i) and 35(1)(b)(ii) of the BNSS, 2023 existing, is an arrest by a police officer, qua an offence punishable with imprisonment up to 7 years, legally justified?

SUBMISSIONS ON BEHALF OF THE AMICUS CURIAE

3. At the outset, learned Amicus Curiae Mr. Sidharth Luthra submitted that in the absence of specific circumstances under Sections 35(1)(b)(i) and 35(1)(b)(ii) of the BNSS, 2023 existing, an arrest by a Police Officer, qua an offence punishable with imprisonment up to 7 years, is not legally justified. Reliance is placed on the judgment of this Court in Arnesh Kumar v. State of Bihar & Anr, (2014) 8 SCC 273.

The directions issued in Arnesh Kumar, were made applicable to all cases where the offence is punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years, with or without fine. Emphasizing upon unnecessary arrest of the accused and his detention by the Magistrate in a casual and mechanical manner, the direction was issued that all State Governments shall instruct its Police Officers not to arrest mechanically, and before effecting an arrest, to be satisfied about the necessity of arrest under the parameters laid down flowing from Section 41 of the Code of 1973. It was, therefore, directed that the Police Officers shall forward a checklist duly filled in furnishing the reasons and material which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention.

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention…” (emphasis supplied) Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51

29. Despite the dictum of this Court in Arnesh Kumar [Arnesh Kumar v.

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32. We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41-A. We express our hope that the investigating agencies would keep in mind the law laid down in Arnesh Kumar [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449], the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60-A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.” (emphasis supplied)