The Supreme Court has stated that investigation of the protest-related FIRs may proceed, while
directing that no coercive measures be taken against protesting students, except those with criminal
antecedents. The order raises a practical question: when may police seek voluntary cooperation,
require attendance, use preventive powers or make an arrest—and what safeguards govern each?
On July 28, the Supreme Court passed interim directions while hearing petitions concerning
violence during recent student protests across the country, including allegations of excessive police
action.
It stated that Delhi and the states may proceed with investigation of the registered FIRs, but directed
that no coercive measures be taken against protesting students without criminal antecedents.
The Court also ordered the release of children below 18 who were arrested or detained in
connection with the protests and had no criminal antecedents, if necessary on a simple bond
executed by them or their family members.
It directed the preservation of CCTV and drone footage, body-worn camera recordings, videography, wireless communications and Police Control Room (PCR) records. Protesters’ personal and digital data must also be preserved and withheld from public disclosure for the time being. While observing that the petitioners’ allegations prima facie disclosed a compelling case for an independent and impartial investigation, the Court has not constituted a Special Investigation Team or reached any final conclusion about responsibility for the
violence.
The order does not exhaustively define “coercive measures”. The legal boundary therefore depends
on the power invoked and its effect on the person’s liberty.
What is the difference between questioning, detention and arrest?
A person may voluntarily speak to the police or accompany officers to a police station. If the person
agrees to do so and remains free to leave, this ordinarily does not amount to custody.
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) also permits the police to require
attendance without arrest. Under Section 179 , an investigating officer may, through a written order,
require a person within the officer’s own or an adjoining police-station area to appear if the officer
believes that person is acquainted with facts relevant to the investigation. The order does not, by
itself, mean that the person is an accused.
Women, males below 15 or above 60, persons with mental or physical disabilities, and persons
suffering from an acute illness cannot be required to attend anywhere other than their residence,
although they may attend the police station voluntarily.
Attendance does not mean that every question must be answered. Section 180 requires truthful
answers to questions relating to the case, except where an answer would tend to expose the person
to a criminal charge, penalty or forfeiture.
Where police suspect a person of a cognisable offence but do not consider arrest necessary, Section
35(3) requires a notice directing the person to appear before the officer or at another place specified
in the notice. A cognisable offence is one in which police may arrest without a warrant and
ordinarily investigate without first obtaining a magistrate’s permission.
If the person complies with the notice and continues to comply, the police cannot arrest them for
that offence unless the investigating officer records why arrest has subsequently become necessary.
Arrest is the exercise of a statutory power that restrains a person’s liberty and brings them into
custody, unlike voluntary questioning or a notice requiring attendance.
“Detention” is often used broadly to describe temporary police restraint. But the BNSS confers
particular powers for particular purposes; it does not create one general power of detention. The
legal character of the action depends on whether the person was free to leave and the legal authority
under which movement was restricted.
Can police take someone to a station merely for ‘verification’?
“Verification” is not, by itself, a source of police power under the BNSS. It may describe what
officers intend to do, but it does not independently authorise them to compel a person to accompany
them or remain at a police station.
Section 39 contains a narrow identity-related power. It permits arrest where a person who, in an
officer’s presence, committed or was accused of committing a non-cognisable offence refuses, on
demand, to provide their name and residence, or gives details the officer reasonably believes are
false. Once the true name and residence are ascertained, the person must be released on a bond or
bail bond to appear before a magistrate if required. If identity is not established within 24 hours, or
the required bond or sureties are not furnished, the person must be forwarded to the nearest
magistrate. This is not a general authority to examine someone’s background, associations or
possible connection with a protest.
Section 170 permits arrest without a warrant where an officer knows of a design to commit a
cognisable offence and believes it cannot otherwise be prevented. Detention cannot exceed 24 hours
unless authorised under another provision.
Section 172 permits the police to detain or remove a person who resists, refuses, ignores or
disregards a lawful direction given by a police officer while performing preventive duties under
Chapter XII of the BNSS. The officer may take the person before a magistrate or, in a petty case,
release them as soon as possible and within 24 hours.
These provisions do not create a general power to detain someone for background verification or
exploratory questioning. The relevant questions are: which power was invoked; what facts justified it; whether the person was free to leave; how long the restraint lasted; and what contemporaneous record, if any, was made.
Can police arrest a protester merely to ask questions?
Articles 19(1)(a) and 19(1)(b) protect freedom of speech and expression and the right to assemble
peaceably and without arms, subject to reasonable restrictions, including in the interests of public
order.
Police may regulate demonstrations and investigate alleged violence, property damage or attacks on
public servants, but investigation does not itself justify arresting every person connected with an
incident.
Where arrest is proposed on the basis of a complaint, information or suspicion concerning a
cognisable offence punishable with up to seven years’ imprisonment, Section 35 requires two
conclusions. The officer must have reason to believe, on the basis of a reasonable complaint,
credible information or reasonable suspicion, that the person committed the offence, and must
separately decide that arrest is necessary—for example, to prevent another offence, conduct a
proper investigation, prevent interference with evidence or witnesses, or ensure the person’s
appearance before court.
The officer must record reasons in writing for making the arrest and, where arrest is unnecessary,
for not making it. In the latter case, a notice under Section 35(3) must be issued.
In Joginder Kumar v State of Uttar Pradesh (1994), the Supreme Court distinguished the existence
of a power to arrest from justification for exercising it. In Arnesh Kumar v State of Bihar (2014), it
required police, in cases involving offences punishable with up to seven years’ imprisonment, to
examine why arrest was necessary. Magistrates must scrutinise the recorded reasons before
authorising continued custody.
In a July 2025 judgment in the Satender Kumar Antil proceedings, the Supreme Court clarified that
even failure to comply with a Section 35(3) notice does not make arrest automatic. The
investigating officer must still decide whether custody is necessary. The need to question someone
does not, by itself, satisfy that test.
For cognisable offences punishable with more than seven years’ imprisonment or with death,
Section 35 uses a different test: the officer must have credible information and reason to believe that
the person committed the offence.
What rights follow an arrest?
Article 22 and the BNSS require that an arrested person be informed of the grounds of arrest,
allowed to consult and be defended by a lawyer of their choice, and produced before the nearest
magistrate within 24 hours, excluding travel time. Custody cannot continue beyond that period
without judicial authorisation.
The arresting officer must prepare a memorandum of arrest, attested by at least one witness who is
either a member of the arrested person’s family or a respectable member of the locality where the
arrest is made, and countersigned by the arrested person. The arrested person must also be permitted
to meet an advocate of their choice during interrogation, though the advocate need not remain
present throughout.
For an arrest without a warrant, Section 47 requires the officer to communicate forthwith the full
particulars of the offence or other grounds of arrest. If the offence is bailable, the person must be
informed of the right to bail and to arrange sureties. Under Section 48, a relative, friend or another
nominated person must be informed without delay of the arrest and place of custody. This
notification is distinct from communicating grounds to the arrested person.
In Vihaan Kumar v State of Haryana (2025), the Supreme Court held that communication of
grounds is a mandatory constitutional requirement. The person must receive enough factual
information to understand why liberty is being restricted and to seek legal advice. Merely listing the
FIR number and penal provisions in the arrest memorandum, relying on a vague diary entry or an
unserved remand application, or informing the family does not establish compliance. Where non-
communication is specifically alleged, the investigating agency bears the burden of proving
compliance.
In Mihir Rajesh Shah v State of Maharashtra (2025), the Court held that written grounds must be
supplied for arrests under all laws and in a language understood by the arrested person. If the officer
cannot communicate them in writing on or soon after arrest, they may initially be explained orally,
but a written copy must follow within a reasonable time and at least two hours before production for
remand. That period is an exceptional final deadline, not a general permission to delay.
In State of Meghalaya v Sonam Raghuvanshi (2026), as reported by LiveLaw , the Court
distinguished complete non-service of grounds, which would vitiate arrest, from inadequate or
erroneous grounds actually supplied, where the court must examine whether the accused suffered
prejudice.
What must the magistrate examine?
Production before a magistrate is the first independent judicial scrutiny of arrest and any request for
continued custody, not an automatic extension of police action. Before authorising remand, the
magistrate must apply judicial mind to the police material, hear the arrested person or their counsel,
and decide whether the arrest and proposed detention are legally justified.
The magistrate must examine the authority and statutory conditions for arrest, including necessity
where applicable, and compliance with safeguards such as recorded reasons, timely written grounds
in a language understood by the person, preparation of the arrest memorandum, compliance with
family-notification requirements, and production within 24 hours.
If the arrest is unlawful, continued detention should not be authorised on its basis and the person
may be released from that custody. This does not automatically quash the FIR, establish that the
allegations are false, or bring the investigation or trial to an end. The legality of arrest and the
merits of the criminal accusation remain separate questions.
