No Prior Approval and Automatic Arrest

Section 18A(1)(b) says the investigating officer shall not require approval for the arrest, if necessary, of a person accused under the Act. Two opposite mistakes grow from that clause. One reads it as making arrest automatic on every atrocity FIR; the other assumes some approval layer still survives. Neither is right: the clause removed the sanction requirement Subhash Kashinath Mahajan had created, and it left the ordinary law of arrest, necessity, recorded reasons, the notice-of-appearance alternative, exactly where it was. The clause's own words carry the answer: approval is not required for the arrest 'if necessary'. This note separates the rule from the misreading.

Figure 1: No prior approval and automatic arrest: two different ideas

1. What the Clause Removed

• The Mahajan layer. On 20 March 2018, Subhash Kashinath Mahajan v. State of Maharashtra directed that arrest of a public servant under the Act needed the appointing authority's approval, and of others the Senior Superintendent of Police's, with reasons recorded and scrutable by the Magistrate.
• Parliament's answer. The 2018 amendment inserted Section 18A(1)(b): no approval is required for the arrest, if necessary, of any person accused under the Act, and no procedure other than the Act and the Code applies. The review judgment of 1 October 2019 recalled the Mahajan directions, and Prathvi Raj Chauhan (2020) upheld the amendment.
• Why the layer was rejected. The approval requirement had no statutory basis, delayed action in exactly the cases the Act treats as urgent, and set a precondition for one class of offences that exists nowhere else in criminal law.

2. What the Clause Did Not Create

• No duty to arrest. The clause's own words are 'the arrest, if necessary'. Removing the approval filter restored the officer's ordinary discretion; it did not convert registration into custody. Arrest without necessity remains illegal under the general law.
• The Code's discipline stands. Section 35 BNSS requires the officer to be satisfied that arrest is necessary, to record reasons, and, for offences punishable with up to seven years, a band covering most Section 3(1) offences, to consider a notice of appearance instead (Arnesh Kumar, 2014). Section 18A(1)(b) itself preserves the Code's procedure.
• Judicial position. Prathvi Raj Chauhan (2020) upheld Section 18A while preserving the courts' power to act where no prima facie case exists. The discretion itself sits in the clause's own words, 'the arrest, if necessary', read with the Code's Section 35 discipline, which continues to govern atrocity arrests.
• Accountability shifted, not vanished. The officer answers for the arrest after the event, to the Magistrate on production and remand, to the bail court, and departmentally, instead of before the event to an approving authority.

Figure 2: The arrest decision in an atrocity case

3. Working the Distinction

• For the investigator. Ask the necessity questions and record the answers: flight, tampering, repetition, the needs of investigation, the threat to the victim. The Act adds urgency, not exemption.
• For the defence. An arrest without recorded necessity is challenged under the Code, on production, at remand and at bail. The challenge does not touch the FIR or the investigation, and Section 18A is no answer to it.
• For the victim. Where the accused is not arrested, protection does not lapse: the spot-visit measures, Section 15A protection and, on threats, cancellation of any bail remain available.
• In an answer. State the sequence: Mahajan created the approval layer in March 2018; Section 18A(1)(b) removed it from August 2018; the review recalled Mahajan in 2019; the necessity discipline of the Code governed throughout and still does.

4. Quick Revision

• Removed. The Mahajan approval requirement: appointing authority for public servants, SSP for others.
• Retained. Necessity, recorded reasons, the notice-of-appearance alternative (s.35 BNSS; Arnesh Kumar).
• The text. 'The arrest, if necessary': discretion survives in the clause itself.
• The sequence. Mahajan, March 2018; s.18A, August 2018; review recall, October 2019; Prathvi Raj Chauhan, February 2020.

5. Frequently Asked Questions

Does Section 18A(1)(b) make arrest compulsory in atrocity cases?

No. It removes the approval requirement; the clause itself says 'if necessary', and the Code's necessity test governs.

Can a superior officer still insist on clearing arrests under the Act?

No administrative approval can be a precondition; the statute forbids requiring it. Ordinary supervision of the investigation continues.

What remedy exists against a mechanical arrest?

The Code's own: challenge at production and remand, bail, and departmental consequences. The Act neither authorises nor protects unnecessary custody.

Did Prathvi Raj Chauhan restore any part of Mahajan?

No. It upheld Section 18A. What survives is the prima facie gateway for the anticipatory-bail bar and the courts' quashing power, not the approval or enquiry directions.

6. Related Topics and Provisions

• Topic 35: Section 18A. The amendment in full.
• Topic 64: Section 18 vs Section 18A. The story behind the clause.
• Topic 66: FIR Registration vs Arrest. The two-stage design.
• Sections 18A(1)(b); s.35 BNSS; Arnesh Kumar (2014); Prathvi Raj Chauhan (2020). The provisions and cases discussed