The power to arrest is one of the most significant — and potentially the most abused — powers vested in the police. Recognizing this, the Supreme Court of India has repeatedly emphasized that “arrest is not mandatory” and must be exercised with reason, restraint, and responsibility.
The Legal Framework
Section 41 of the Code of Criminal Procedure, 1973 (CrPC) empowers the police to arrest a person without a warrant in cognizable offences under certain conditions. However, the provision also mandates that an arrest should not be made merely because it is lawful to do so — the police officer must be satisfied that such an arrest is necessary for purposes such as preventing further offences, ensuring the presence during trial, or preventing tampering with evidence.
Landmark Judgment — Arnesh Kumar v. State of Bihar (2014)
In this landmark decision, the Supreme Court laid down strict guidelines to curb arbitrary arrests. The Court directed that:
-
Police officers must record specific reasons and satisfaction for making an arrest under Section 41(1)(b).
-
Magistrates must scrutinize the reasons furnished before authorizing further detention.
-
Non-compliance can attract departmental and judicial consequences.
The judgment, in essence, transformed Section 41 from a discretionary tool into a regulated power — ensuring that liberty is not sacrificed at the altar of routine procedure.
Recent Judicial Approach
The Supreme Court and several High Courts have consistently reiterated these principles, reminding law enforcement agencies that:
“The existence of the power to arrest is one thing; the justification for its exercise is quite another.”
Courts have also recognized that unnecessary arrests lead to overcrowding of prisons, violation of human rights, and disruption of livelihoods — all of which run counter to the constitutional mandate of personal liberty under Article 21.
The Shift Towards Accountability
This evolving jurisprudence represents a systemic shift — from unquestioned police discretion to judicial oversight and accountability. It reinforces that the criminal justice system must operate not only to punish offenders but also to protect individuals from misuse of power.
The Road Ahead
For this shift to translate into ground reality:
-
Police training must emphasize the “necessity test” under Section 41.
-
Magistrates must act as vigilant gatekeepers against mechanical remand orders.
-
Citizens must be aware of their rights against arbitrary arrest.
The message from the Supreme Court is clear — liberty is the rule, arrest is the exception.
