In India, arrest without warrant is governed by Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 41 of the Code of Criminal Procedure, 1973 (CrPC) and absorbed the Section 41A notice. Sub-section (7) needs a Deputy Superintendent's prior permission to arrest an infirm person, or one above sixty, for offences punishable with under three years.
At a glance
| Old law | New law | |
|---|---|---|
| Section | Sections 41 and 41A, CrPC 1973 | Section 35, BNSS 2023 (in force from 1 July 2024, S.O. 848(E) of 23 February 2024) |
| What it does | When police may arrest without a warrant; notice of appearance where arrest is not required | Same powers and notice in one section, plus prior DSP-rank permission for infirm persons and those above sixty (s.35(7)) |
| Punishment | None — procedural section | None — procedural section |
| Cognizable / bailable / triable by | Applies to cognizable offences as classified by the CrPC First Schedule; non-cognizable offences need a warrant or order (s.41(2)) | Applies to cognizable offences as classified by the BNSS First Schedule (s.2(1)(g)); non-cognizable offences need a warrant or order (s.35(2)) |
| Notice form | None in the CrPC Second Schedule | Form No. 1, "Notice for appearance by the police [See section 35(3)]" |
| Change type | — | Modified |
What changed
- Minor edit (punctuation only) — the seven-year test in clause (1)(b). Both conditions, "reason to believe" (i) and satisfaction that arrest "is necessary" for one of five purposes (ii)(a)–(e), carry over word for word. So do the duty to record reasons when arresting and the proviso requiring written reasons "for not making the arrest" (inserted by Act 41 of 2010, w.e.f. 2 November 2010).
- Minor edit — relettering and cross-references. Clause (ba), for offences punishable with more than seven years or death, becomes (c). Clauses (c)–(i) become (d)–(j). "This Code" becomes "this Sanhita". The released-convict clause now cites s.394(5) instead of s.356(5), and sub-section (2) cites s.39 instead of s.42. Clauses (a), (c) and the proviso now end "; or".
- Minor edit — Section 41A moves into Section 35. Section 41A(1)–(4) becomes s.35(3)–(6) with the same operative words, from "The police officer shall … issue a notice" to arrest on non-compliance "subject to such orders as may have been passed by a competent Court". Section 35(3) refers to "sub-section (1)" where s.41A(1) said "the provisions of sub-section (1) of section 41".
- New — sub-section (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 of less than three years and such person is infirm or is above sixty years of age."
- New, outside s.35 — a prescribed notice form. Form No. 1 of the BNSS Second Schedule is a "Notice for appearance by the police" under s.35(3). Under s.522 the forms "may be used" and, if used, "shall be sufficient". The CrPC Second Schedule began with the summons to an accused person and had no s.41A form.
- Modified, outside s.35 — arrest procedure. Section 36(c) adds "or any other person" to the people an arrestee may have informed. Section 37(b) requires a designated police officer, not below Assistant Sub-Inspector, in every district and police station, to keep arrest information "prominently displayed in any manner including in digital mode".
- New, outside s.35 — handcuffing. Section 43(3) says the officer "may, keeping in view the nature and gravity of the offence, use handcuff" for listed categories, such as a habitual or repeat offender, an escapee, or a person who has committed murder, rape or an offence against the State. Section 46 CrPC had no such sub-section.
Statutory text (relevant extract)
Section 41A(3)–(4) CrPC are in the same words as s.35(5)–(6) below.
Extract — Section 35(5)–(7), BNSS:
(5) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (6) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned 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 of less than three years and such person is infirm or is above sixty years of age.
How it works — the steps
- Is the offence cognizable? Section 2(1)(g) defines a cognizable offence as one for which a police officer may, under the First Schedule or another law, arrest without warrant. If the offence is non-cognizable, s.35(2) bars arrest except under a warrant or Magistrate's order. The one exception is s.39: a person who refuses to give his name and residence, or gives a false one, may be arrested.
- Which clause of s.35(1)? Clause (a) covers a cognizable offence committed in the officer's presence. Clause (b) covers offences punishable with up to seven years. Clause (c) covers offences punishable with more than seven years or death, where the officer has credible information and reason to believe. Clauses (d)–(j) cover other listed cases, such as proclaimed offenders and escapees.
- For a clause (b) offence, both conditions. The officer needs a reason to believe (i) and satisfaction of necessity on at least one ground in (ii). He must record reasons in writing when he arrests, and reasons in writing when he does not.
- If arrest is not required, a notice. The officer "shall" issue a notice to appear (s.35(3)), for which Form No. 1 is provided. The person must comply (s.35(4)). While he complies he shall not be arrested unless reasons are recorded (s.35(5)). If he fails to comply or will not identify himself, the officer may arrest, subject to any court order (s.35(6)).
- Infirm persons and those above sixty. Where the offence is punishable with less than three years and the person is infirm or above sixty, prior permission of a DSP-rank officer is needed (s.35(7)).
- At and after arrest. Sections 36 (identification and arrest memo), 47 (grounds, and the right to bail for a bailable offence), 48 (informing a nominee and the designated officer), 38 (meeting an advocate), 43(3) (handcuffs) and 58 (production within twenty-four hours) apply.
Worked example. Under s.127(2) of the Bharatiya Nyaya Sanhita, 2023, wrongful confinement is punishable with up to one year and is listed in the BNSS First Schedule as cognizable and bailable. If the suspect is 65, s.35(7) applies: no arrest without a DSP-rank officer's prior permission. Even with permission, s.35(1)(b) must still be met. On a reading, s.35(7) matters mainly for cognizable BNS offences of this kind, because Part II of the First Schedule makes offences against other laws punishable with less than three years non-cognizable, so s.35(2) already requires a warrant for them.
What this means in practice
- For the investigating officer. Record reasons both ways (s.35(1)(b) and its proviso), without "mechanically reproducing in the case diary all or most of the reasons" (Arnesh Kumar, para 13). Do not serve the s.35(3) notice by WhatsApp or other electronic communication (16 July 2025 order, para 43). A later arrest under s.35(6) needs material not available when the notice issued (15 January 2026 order, para 30). For a suspect infirm or above sixty in a sub-three-year offence, obtain the DSP-rank permission first.
- For the person served with a notice. You must comply (s.35(4)). Keep proof that you attended and continued to comply: compliance is what triggers the s.35(5) protection.
- For defence counsel at remand or bail. In Satender Kumar Antil (2022, para 73(c)) the Court held that courts must satisfy themselves on compliance with ss.41 and 41A, and that "Any non-compliance would entitle the accused for grant of bail". Sections 35(1)(b) and 35(3)–(6) repeat those words. On a reading, the same check applies to s.35, and the 2026 order construed s.35 in the same way. For an elderly or infirm client, ask whether the s.35(7) permission was obtained. The BNSS does not state the consequence of its absence.
- For the Magistrate authorising detention. Arnesh Kumar (para 14) requires perusal of the officer's report and a recorded satisfaction; s.48(4) BNSS adds a duty to check that the arrestee was told of his right to have someone informed.
Judgments that still matter
Sections 35(1)–(6) BNSS repeat the operative words of ss.41 and 41A CrPC. On a reading of the text, judgments construing those words remain relevant; the Supreme Court's 2025 and 2026 orders below construe s.35 itself.
Joginder Kumar v. State of U.P., [1994] 3 S.C.R. 661 (1994 INSC 170), decided 25 April 1994. A three-judge bench (M.N. Venkatachaliah C.J., S. Mohan and A.S. Anand JJ.) held: "No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification of the exercise of it is quite another." Except in heinous offences, arrest should be avoided where a notice to attend the police station would do. An arrested person may, on request, have a friend, relative or other interested person told of the arrest; the police must tell him of this right and note who was informed, and the Magistrate must check compliance (pp.670–671; the report has no paragraph numbers). Why it matters now: those requirements are now statutory in ss.36(c) and 48(1)–(4) BNSS.
Arnesh Kumar v. State of Bihar, [2014] 8 S.C.R. 128 (2014 INSC 463), decided 2 July 2014. Chandramauli Kr. Prasad J., for a bench with Pinaki Chandra Ghose J., held that "no arrest should be made only because the offence is non-bailable and cognizable" (para 8). For offences punishable up to seven years, the officer needs both a reason to believe and satisfaction that arrest is necessary on one of the listed grounds (para 9). Section 41A requires a notice where arrest is not required (para 12). Para 14 directed a checklist of the s.41(1)(b)(ii) grounds, a recorded satisfaction by the Magistrate before authorising detention, and service of the notice within two weeks of the case being instituted, with departmental action and contempt for non-compliance. Para 15 extended the directions to all offences punishable with up to seven years. Why it matters now: the words it construed are now s.35(1)(b) and (3)–(6).
Satender Kumar Antil v. Central Bureau of Investigation, [2022] 10 S.C.R. 351 (2022 INSC 690), decided 11 July 2022. Sanjay Kishan Kaul and M.M. Sundresh JJ. held that even for a cognizable offence "an arrest is not mandatory" (para 21). The officer must record reasons both for arresting and for not arresting (para 22), and ss.41 and 41A are "facets of Article 21" (para 25). Para 73 directed agencies to comply with ss.41 and 41A and Arnesh Kumar (73(b)), required courts to satisfy themselves on compliance, since "Any non-compliance would entitle the accused for grant of bail" (73(c)), and called for State standing orders (73(d)). Why it matters now: the Court continued supervising compliance in the same proceedings after the BNSS, as the next two orders show.
Satender Kumar Antil v. Central Bureau of Investigation, [2025] 7 S.C.R. 1858 (2025 INSC 909), decided 16 July 2025. M.M. Sundresh and N. Kotiswar Singh JJ. refused to modify an order of 21 January 2025 that had barred service of s.41A/s.35 notices through WhatsApp or other electronic modes (paras 1–3, 44). Service of a s.35 notice lies outside the procedures s.530 BNSS permits in electronic mode (para 27). Non-compliance with a s.35 notice "does not ipso facto mandate arrest" and arrest is "the last resort" (para 23), and s.35(6) "contains an element of substantivity" (para 24). The Court concluded that it was "unable to convince ourselves that electronic communication is a valid mode of service of notice under Section 35 of the BNSS, 2023" (para 43). Why it matters now: it governs how a s.35(3) notice must be served.
Satender Kumar Antil v. Central Bureau of Investigation, 2026 INSC 115, decided 15 January 2026. The same bench held that the power of arrest under s.35(1) is discretionary (para 18). Section 35(1)(b)(i), together with at least one condition in s.35(1)(b)(ii), must exist for an arrest (paras 19–20, 33(c)). An arrest under s.35(6) after a notice must rest on "materials and factors which were not available with the police officer at the time of issuing a notice" (para 30). "A notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule" (para 33(d)); arrest is "a clear exception" (para 31). Why it matters now: it directly construes s.35(1)(b) and (3)–(6).
Which law applies to your case
Section 531(2)(a) BNSS provides that any investigation pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force". On a reading of that text, an arrest in an investigation already pending on that date falls to be tested against ss.41 and 41A CrPC. An arrest in an investigation begun on or after that date is tested against s.35 BNSS, including sub-section (7), which has no CrPC counterpart. As the operative words are otherwise the same, the practical difference is mainly s.35(7). For the full analysis see which law applies to an offence before 1 July 2024.
Frequently asked questions
What is the BNSS equivalent of Section 41 CrPC? Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 41 of the Code of Criminal Procedure, 1973 from 1 July 2024. Sub-sections (1) and (2) re-enact Section 41 with clauses relettered, sub-sections (3) to (6) re-enact the Section 41A notice of appearance, and sub-section (7) adds a new rule for persons who are infirm or above sixty.
Must the police issue a notice instead of arresting for offences punishable up to seven years? In Satender Kumar Antil v. Central Bureau of Investigation (2026 INSC 115, paras 31 and 33) the Supreme Court held that for offences punishable with imprisonment up to seven years a notice under Section 35(3) BNSS is the rule and arrest under Section 35(6) read with Section 35(1)(b) is a clear exception. Arrest also requires both a reason to believe under Section 35(1)(b)(i) and one of the necessity grounds in Section 35(1)(b)(ii).
Can the police arrest a person after issuing a Section 35(3) notice? Under Section 35(5) BNSS a person who complies and continues to comply with the notice shall not be arrested unless the officer, for reasons recorded, is of the opinion that he ought to be. Under Section 35(6) the officer may arrest on non-compliance or refusal to identify, subject to any court order. The Supreme Court has held that non-compliance does not by itself mandate arrest (2025 INSC 909, para 23) and that an arrest under Section 35(6) must rest on material not available when the notice was issued (2026 INSC 115, para 30).
Can a Section 35 BNSS notice be served on WhatsApp or by email? No. In Satender Kumar Antil v. Central Bureau of Investigation (2025 INSC 909, para 43), decided on 16 July 2025, the Supreme Court held that electronic communication is not a valid mode of service of a notice under Section 35 BNSS. It reasoned that Section 530 does not extend electronic mode to such notices and that a Section 35 notice bears on personal liberty.
What protection does Section 35(7) BNSS give senior citizens? Section 35(7) says no arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police where the offence is punishable with imprisonment of less than three years and the person is infirm or above sixty years of age. The BNSS does not state the consequence of an arrest made without that permission, and no judgment read for this page decides it.
Can the police handcuff a person when arresting under Section 35 BNSS? Handcuffing is dealt with in Section 43(3) BNSS, not Section 35. It is permissive: the officer may, keeping in view the nature and gravity of the offence, use handcuffs on a habitual or repeat offender, an escaped person, or a person who has committed listed offences such as organised crime, terrorist act, murder, rape or offences against the State. Section 46 CrPC, its predecessor, had no handcuffing sub-section.
Related
- Police notice to appear: BNSS Section 35 vs CrPC Section 41A
- Arrest of women and senior citizens: BNSS vs CrPC
- Handcuffing and use of force during arrest: BNSS Section 43
- Rights after arrest: a checklist under the BNSS and CrPC
- Section 167 CrPC vs Section 187 BNSS: remand and default bail
- Offence before 1 July 2024: which law applies
- Section 46 CrPC vs Section 43 BNSS — Arrest How Made
- Sections 78–81 CrPC vs Sections 80–83 BNSS — Executing a Warrant of Arrest Outside the Issuing Court's Jurisdiction
Sources
- Acts and sections read: BNSS 2023 ss.2(1)(g), 35–39, 43, 47, 48, 58, 522, 531, the First Schedule (Part II and the BNS s.127(2) entry) and Second Schedule Form No. 1 (Gazette CG-DL-E-25122023-250884); CrPC 1973 ss.41, 41A–41D, 46 and Second Schedule Form No. 1 (original India Code text).
- Judgments read (Veritect judgment corpus, full text): Joginder Kumar v. State of U.P. (
1994_3_661_672_EN.md); Arnesh Kumar v. State of Bihar (2014_8_128_143_EN.md); Satender Kumar Antil v. CBI, 2022 (2022_10_351_447_EN.md); Satender Kumar Antil v. CBI, 16 July 2025 (2025_7_1858_1878_EN.md); Satender Kumar Antil v. CBI, 15 January 2026 (Diary_37889-2022_Judgment.md).
This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.