Section 41 of the Code of Criminal Procedure, 1973 (CrPC), which governed when police may arrest without a warrant, has been replaced by Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The new provision merges CrPC Sections 41 and 41A into a unified framework, adds protections for elderly and infirm persons, and mandates a designated police officer in every station to maintain arrest records. These changes codify the spirit of the Arnesh Kumar guidelines while adding new statutory safeguards.
What changed
| Feature | Section 41 CrPC (Old) | Section 35 BNSS (New) |
|---|---|---|
| Core power | Police may arrest without warrant for cognizable offences | Same — retained without change |
| Notice of appearance (41A) | Separate provision under Section 41A | Merged into Section 35(3) to 35(7) |
| Protection for elderly/infirm | No specific protection | No arrest without prior permission of DSP if offence carries less than 3 years imprisonment and person is above 60 years or infirm |
| Informing relatives | Arrestee may inform "a relative or friend" | Expanded to "a relative or friend or any other person nominated by him" |
| Designated arrest records officer | No statutory requirement | Mandatory designated officer in every district and police station to maintain arrest records |
| Written reasons | Reasons for arrest to be recorded | Reasons for arrest or non-arrest must be recorded in writing — strengthened obligation |
| Information to arrestee | General right to know grounds | Full particulars of the offence and grounds of arrest must be communicated |
Full statutory text
Section 41 CrPC (Old Law) — Relevant Extract:
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:— (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary— (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing.
Section 35 BNSS (New Law) — Relevant Extract:
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person— (a) who commits, in the presence of a police officer, a cognizable offence; or (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:— (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary— (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest; or
(c) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.
(3) The police officer shall, in all cases where the arrest of a person is not required under sub-section (1), issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(7) No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment for less than three years and such person is infirm or is above sixty years of age.
Key differences
Merger of Sections 41 and 41A: The notice-before-arrest mechanism that existed as a separate Section 41A under CrPC is now integrated as sub-sections (3) through (7) of Section 35 BNSS. This structural change makes the notice the statutory default and arrest the exception.
Age and infirmity protection: Sub-section (7) is entirely new. For offences punishable with less than three years imprisonment, no arrest of a person above 60 years of age or an infirm person can be made without prior written permission of an officer not below the rank of Deputy Superintendent of Police.
Expanded right to inform: Under CrPC, the arrested person could inform "a relative or friend." Under BNSS, this has been expanded to "a relative or friend or any other person nominated by him," broadening the circle of persons the arrestee can contact.
Designated records officer: A new mandatory requirement under BNSS provides that there shall be one designated police officer in every district and every police station who shall be responsible for maintaining a register and providing information regarding persons arrested, including their names, addresses, and the nature of offences for which they have been arrested.
Written reasons mandatory for both arrest and non-arrest: While CrPC Section 41 required the officer to record reasons for arrest, Section 35 BNSS strengthens this by requiring written reasons for both the decision to arrest and the decision not to arrest.
Compliance with notice is now statutory: Under Section 35(4), where the notice is complied with, the person shall not be arrested in respect of the offence unless for reasons to be recorded, the police officer is of the opinion that arrest is necessary. This codifies the principle from Arnesh Kumar.
What this means for practitioners
For defence counsel: The new age and infirmity protection under sub-section (7) provides an additional statutory ground to challenge arrests of elderly or infirm persons in offences punishable with less than three years. Non-compliance with the DSP permission requirement renders the arrest procedurally defective.
For bail applications: If the mandatory notice procedure under sub-sections (3) to (6) was not followed before arrest, this becomes a strong ground in bail applications. The statutory merger of the notice requirement into the arrest provision strengthens the argument that notice is the rule and arrest the exception.
For police compliance: The designated officer requirement means police stations must formally appoint an officer responsible for arrest records. Failure to maintain these records may attract departmental action and provides a basis for habeas corpus challenges.
For pending cases: Under Section 531(2)(a) BNSS, investigations and proceedings pending before 1 July 2024 continue under CrPC. Arrests made on or after 1 July 2024 must comply with Section 35 BNSS, including the new safeguards.
Does old case law still apply?
Arnesh Kumar v. State of Bihar (2014) 8 SCC 273: The Supreme Court guidelines mandating that arrest should not be made routinely for offences punishable with up to seven years imprisonment remain fully applicable. Section 35 BNSS has effectively codified these guidelines. The Arnesh Kumar checklist — that police must satisfy themselves that arrest is necessary on the stated grounds — is now expressly embedded in the statute.
D.K. Basu v. State of West Bengal (1997) 1 SCC 416: The eleven requirements laid down for arrest procedures (informing relatives, medical examination, arrest memo, etc.) continue to apply as constitutional safeguards under Article 21. Section 35 BNSS strengthens these by making several of them statutory rather than merely judge-made.
Joginder Kumar v. State of U.P. (1994) 4 SCC 260: The principle that arrest should not be made merely because the offence is cognizable and non-bailable remains good law. Section 35 BNSS codifies this principle by embedding the conditions for arrest directly into the provision.
All case law interpreting CrPC Section 41 regarding the necessity for arrest, the reasonableness requirement, and the consequences of non-compliance continues to apply to Section 35 BNSS, since the substantive principles remain unchanged. The new provision only adds further safeguards; it does not dilute any existing protection.
Judicial interpretation under BNSS Section 35 (post-July 2024)
The following case from the Veritect Legal Intelligence database shows how the Supreme Court is interpreting Section 35 BNSS in practice:
Arnesh Kumar Compliance under BNSS (15 January 2026)
Court: Supreme Court of India | Bench: M. M. Sundresh, Nongmeikapam Kotiswar Singh JJ. | Result: Clarificatory order issued
The Supreme Court delivered a significant clarificatory order interpreting the interplay between Sections 35(1)(b), 35(3), and 35(6) of BNSS. The issue arose from conflicting observations by the Bombay High Court in Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025), which presented two seemingly contradictory positions — making Section 35(3) notice imperative while also permitting arrest with recorded reasons.
The Court conclusively held that issuance of notice under Section 35(3) BNSS is the RULE for offences punishable with imprisonment up to 7 years, and arrest under Section 35(6) read with Section 35(1)(b) is a clear EXCEPTION. The arrest exception applies only when the police officer satisfies the specific conditions under Section 35(1)(b)(ii) — necessity for preventing further offences, proper investigation, preventing evidence tampering, or ensuring court attendance. The Court reaffirmed the Arnesh Kumar v. State of Bihar (2014) principles as now codified within BNSS Section 35.
Veritect reference: Diary_37889-2022_Judgment
Emerging patterns
- Notice is the rule, arrest the exception: The SC has definitively settled that Section 35(3) notice is mandatory for offences up to 7 years imprisonment, with arrest permissible only when conditions in Section 35(1)(b)(ii) are met.
- Arnesh Kumar codified: The judicial guidelines from Arnesh Kumar (2014) are now treated as embedded in the BNSS statutory framework, not merely supplementary.
- Written reasons mandatory for both arrest and non-arrest: The proviso to Section 35(1)(b) requires written reasons for non-arrest, strengthening accountability in both directions.
Frequently asked questions
Is Section 35 BNSS the same as Section 41 CrPC? Section 35 BNSS replaces Section 41 CrPC and additionally absorbs Section 41A CrPC (notice of appearance). The core arrest powers remain the same, but BNSS adds protections for elderly and infirm persons, expands the right to inform nominated persons, and mandates a designated records officer.
Can police still arrest without warrant under BNSS? Yes. Section 35(1) retains the power of police to arrest without warrant for cognizable offences. However, the conditions under sub-section (1)(b) — that the officer must have reason to believe the person committed the offence and must be satisfied that arrest is necessary — must be met for offences punishable with up to seven years imprisonment.
What happens if the DSP permission is not taken for arresting an elderly person? An arrest made in violation of sub-section (7) — without DSP permission for a person above 60 or infirm, in offences punishable with less than 3 years — is procedurally illegal. The arrested person may seek immediate release through habeas corpus or bail, and the arresting officer may face departmental and legal consequences.
Do the Arnesh Kumar guidelines still apply after BNSS? Yes. The Arnesh Kumar guidelines remain fully applicable. Section 35 BNSS codifies the core principles of these guidelines — that arrest is the exception, not the rule, and must be justified with recorded reasons. The guidelines continue to supplement the statutory provisions.