Section 35 BNSS: Police Arrest Without Warrant, Notice Rule & Arnesh Kumar Guidelines (2026)

Abstract

The power to arrest a citizen without a warrant is among the most potent — and most susceptible to abuse — instruments of the criminal justice machinery. For decades, the unchecked exercise of this power under Section 41 of the Code of Criminal Procedure, 1973 (CrPC) led to systemic violations of personal liberty. The landmark judgment in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 and Section 41A CrPC collectively transformed India’s arrest landscape. With the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in force from 1 July 2024, these safeguards are re-codified under Section 35. The Supreme Court in Satender Kumar Antil v. CBI (2026 INSC 115, 15 January 2026) authoritatively confirmed: for offences punishable up to seven years, notice before arrest is mandatory as a matter of course — arrest is the exception, never the default. This article examines all 18 aspects of this framework: statutory text, constitutional dimensions, judicial evolution, the nine-point checklist, special protections, consequences of non-compliance, and practical guidance for every stakeholder.

1. Introduction: The Constitutional Primacy of Personal Liberty

In the hierarchy of fundamental rights guaranteed by the Constitution of India, the right to personal liberty under Article 21 occupies a position of pre-eminent significance. Arrest — the act of depriving a person of their liberty by State authority — must therefore be grounded in necessity, proportionality, and strict adherence to law. India’s criminal justice system has long grappled with the paradox of arrest: while it is a necessary investigative tool, its indiscriminate use defeats the presumption of innocence that forms the bedrock of a fair trial.

The National Crime Records Bureau’s annual reports have consistently disclosed that over 75% of India’s prison population consists of undertrial prisoners — individuals who have never been convicted of any offence. This stark reality underscores the urgent need for the safeguards enacted in Section 35 BNSS. The legislative response, initially in the form of Section 41A CrPC (2008), and its judicial crystallisation in Arnesh Kumar (2014), represented a decisive shift from arrest as default to arrest as exception. The BNSS and the 2026 INSC 115 pronouncement have carried this evolution to its logical and binding conclusion.

2. Historical Evolution of Arrest Law in India

2.1 The Colonial Legacy

India’s arrest law traces its roots to the CrPC 1861, enacted to serve colonial interests in maintaining order rather than protecting citizens’ liberty. The CrPC 1973, while an improvement, retained wide police discretion in warrantless arrests, creating fertile ground for systemic abuse that persisted for decades after independence.

2.2 Joginder Kumar v. State of UP (1994) — The Necessity Principle

In Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260, the Supreme Court held: (i) No arrest can be made merely because it is lawful to do so. (ii) The police officer must be able to justify the arrest apart from the power to arrest. (iii) The arrested person must be informed of the grounds of arrest. (iv) The right to have a person of one’s choice informed of the arrest must be communicated to the arrestee. Joginder Kumar established the necessity principle — the philosophical foundation upon which the entire Section 35 BNSS framework is built.

2.3 D.K. Basu v. State of West Bengal (1997) — Custodial Safeguards

In D.K. Basu v. State of West Bengal (1997) 1 SCC 416, the Supreme Court issued eleven binding requirements for police officers making arrests: visible identification, a witnessed memo of arrest, informing relatives or friends, and producing the arrested person before a Magistrate within 24 hours. These requirements are substantially codified in Sections 35(8) and 43 of the BNSS.

2.4 The 2008 Amendment and Birth of Section 41A CrPC

Following the Malimath Committee’s recommendations, Parliament inserted Section 41A into the CrPC via the Code of Criminal Procedure (Amendment) Act, 2008. This provision mandated a notice of appearance in lieu of arrest in all cases where arrest was not required under Section 41(1). However, for years this provision remained largely unenforced, owing to the absence of meaningful judicial oversight at the remand stage — a gap decisively closed by Arnesh Kumar in 2014.

2.5 Pre-Arnesh Kumar Landscape (2008–2013)

Between the 2008 Amendment and the Arnesh Kumar judgment, several High Courts attempted to enforce the new provisions with varying success. However, without Supreme Court endorsement and a monitoring mechanism, compliance was patchy. Police officers continued to arrest routinely without issuing notices, magistrates continued to grant remand without scrutiny, and the undertrial population continued to grow. The Arnesh Kumar judgment in 2014 was the decisive turning point.

3. The CrPC Framework: Sections 41 and 41A (Pre-1 July 2024)

Note: Sections 41 and 41A CrPC ceased to have effect on 1 July 2024 but remain relevant for proceedings initiated before that date and for understanding the evolution that produced Section 35 BNSS.

3.1 Section 41 CrPC — Conditions for Warrantless Arrest

Section 41(1)(b) CrPC permitted arrest for sub-seven-year offences subject to two mandatory cumulative conditions: (i) The officer has reason to believe the person committed the offence; AND (ii) The officer is satisfied that arrest is necessary for a specified purpose — preventing further offences, proper investigation, preventing evidence destruction, preventing witness intimidation, or preventing absconding. Both conditions must co-exist and be recorded in writing.

3.2 Section 41A CrPC — The Notice Regime

Section 41A required the police officer, in all cases where arrest was NOT required under Section 41(1), to issue a written notice directing the person to appear. The duty to comply was cast upon the person notified. Compliance protected the person from arrest unless the officer recorded specific reasons why arrest had become necessary. Non-compliance empowered the officer to arrest after recording reasons.

3.3 Why the CrPC Framework Failed in Practice

The CrPC framework failed because: (i) Police officers routinely ignored the statutory requirements, issuing no notices and recording no reasons. (ii) Magistrates at the remand stage granted remand without examining police compliance, treating it as a ministerial rather than a judicial function. (iii) No institutional monitoring mechanism existed to enforce compliance. It was this dual failure — by police and magistracy alike — that necessitated the Arnesh Kumar guidelines and ultimately the statutory consolidation in Section 35 BNSS.

4. Section 35 BNSS: Full Text and Detailed Analysis

The BNSS (Act No. 46 of 2023) received Presidential assent on 25 December 2023 and came into force on 1 July 2024 vide S.O. 2652(E) dated 24 June 2024. Section 35 BNSS merges Sections 41 and 41A CrPC into a single consolidated provision, structurally signalling that notice and arrest are part of a unified, liberty-protective continuum

Section 35 BNSS — Key Sub-Sections (Abridged)

35(1)(a): In-presence cognizable offence — arrest permitted without further conditions.

35(1)(b): Sub-7-year offences — arrest ONLY if conditions (i) AND any one of (ii)(a)–(e) are both satisfied and recorded in writing.

35(1)(b)(i): Officer has REASON TO BELIEVE the person committed the offence.

35(1)(b)(ii): Officer is satisfied arrest is NECESSARY for one of: (a) prevent further offence; (b) proper investigation; (c) prevent evidence disappearance; (d) prevent witness intimidation; (e) ensure court presence.

PROVISO: Officer must record in writing reasons for NOT arresting where arrest is not made.

35(3): Officer SHALL issue a notice to appear in all cases where arrest is not required.

35(4): Person notified has a DUTY TO COMPLY with the notice.

35(5): Complying person SHALL NOT be arrested unless officer records reasons that arrest is necessary.

35(6): Non-compliance with notice → officer MAY arrest after recording reasons.

35(7): No arrest for sub-3-year offence of a person above 60 yrs or infirm WITHOUT prior DSP permission.

5. Comparative Analysis: CrPC vs. BNSS Arrest Provisions

6. The Nine-Point Arnesh Kumar Checklist Under Section 35(1)(b)(ii) BNSS

The Supreme Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 distilled the conditions under Section 41(1)(b)(ii) CrPC — now Section 35(1)(b)(ii) BNSS — into a mandatory nine-point checklist that every police officer must apply and document in writing before arresting any person for a sub-seven-year offence. The officer must record which specific purpose makes arrest necessary:

“Both conditions — reason to believe the offence was committed AND satisfaction that arrest is necessary — must co-exist simultaneously. They cannot be conflated. Condition (i) is a threshold; condition (ii) is an independent, additional requirement.”
— 2026 INSC 115, Paragraph 33

7. Arnesh Kumar v. State of Bihar (2014) — The Watershed Judgment

7.1 Background and Statistical Context

Arnesh Kumar v. State of Bihar arose from SLP (Crl.) No. 9127 of 2013, involving a petitioner apprehending arrest under Section 498A IPC (cruelty to wife). Before a bench of Justices Chandramauli Kr. Prasad and Pinaki Chandra Ghose, the Court took judicial notice of alarming NCRB data: 1,97,762 arrests under Section 498A IPC in 2012 alone — 25% of them women including mothers-in-law — against a conviction rate of under 15%. This scale of unnecessary arrests demanded a systemic judicial response.

7.2 Key Findings of the Court

• On the nature of arrest: Arrest must not be made mechanically. It is a drastic action affecting a fundamental right and must be based on justifiable grounds.
• On Sections 41/41A as Article 21 facets: These provisions are facets of Article 21. Non-compliance is a constitutional violation, not merely a statutory irregularity.
• On the necessity test: Belief that the offence was committed is insufficient alone. The necessity condition in sub-clause (ii) must independently and simultaneously be fulfilled with recorded specifics.
• On the Magistrate’s duty: The Magistrate is not a rubber stamp. They must independently examine police compliance and record their own satisfaction in writing before authorising detention.

7.3 Binding Directions in Paragraph 13 — Applicable Nationwide to All Offences up to 7 Years

• State Governments must instruct police not to automatically arrest when a cognizable case is registered.
• All police officers must be provided with a printed checklist of Section 35(1)(b)(ii) BNSS conditions.
• The checklist with reasons and materials must be forwarded to the Magistrate when producing the accused.
• Magistrates must only authorise detention after recording their own satisfaction in writing.
• Non-compliance renders police officers liable for departmental action and contempt of court before the High Court.
• Magistrates who authorise remand without recording reasons face departmental action by the High Court.

7.4 Universal Application

Although arising from a Section 498A case, the Court explicitly held: the guidelines apply universally to ALL offences punishable with imprisonment for less than seven years or which may extend to seven years. This was a deliberate choice to address the systemic problem of unnecessary arrests across all offence categories, not merely matrimonial disputes.

8. Post-Arnesh Kumar Judicial Evolution (2014–2024)

8.1 Satender Kumar Antil v. CBI (2022) 10 SCC 51 — Four-Category Framework

The Supreme Court categorised offences into four categories: Category A (up to 7 years — notice is the rule; liberal bail); Category B (more than 7 years — normal bail principles); Category C (economic offences — special considerations); Category D (special statutes: NDPS, PMLA, UAPA — governed by their own provisions). The 2022 judgment also directed High Courts to establish monitoring committees and directed NALSA to facilitate release of undertrial prisoners.

8.2 Delhi High Court: Amandeep Singh Johar (2018) and Rakesh Kumar (2021)

The Delhi High Court elaborated mandatory content requirements for Section 41A notices: specific FIR number, alleged offences, a copy of the FIR, specific date/time/place of appearance, and adequate time to engage legal counsel. These guidelines were expressly approved by the Supreme Court in Satender Kumar Antil (2022) and continue to apply under Section 35 BNSS.

8.3 Madhya Pradesh, Telangana, Delhi High Courts (2015–2024)

The Madhya Pradesh High Court held that arrest without compliance with Arnesh Kumar guidelines entitles the accused to regular bail on procedural violation alone. The Delhi High Court sentenced a police officer to one-day imprisonment for contempt for violating the Arnesh Kumar principles. The Telangana High Court held that legal proceedings could be initiated against police officials for violating the guidelines. In 2021, the Supreme Court reiterated the guidelines in the context of COVID-19 prison overcrowding as a public health emergency.

8.4 Karnataka High Court: Section 35 BNSS Notices (July 2024)

In MANU/KA/4446/2024 (19 July 2024), the Karnataka High Court held that the Delhi High Court’s notice content guidelines apply equally to Section 35(3) BNSS notices — confirming that the pre-BNSS requirements carried over seamlessly into the new statutory regime.

8.5 Bombay High Court: Chandrashekhar Bhimsen Naik (December 2025)

In Chandrashekhar Bhimsen Naik v. State of Maharashtra (2025 SCC OnLine Bom 5357, 3 December 2025), the Bombay High Court held that where offences are punishable up to seven years, it is imperative that the Investigating Officer issue a notice under Section 35(3) BNSS before effecting any arrest. This judgment was expressly endorsed by the Supreme Court in 2026 INSC 115, elevating it to a binding national standard.

9. The Satender Kumar Antil Saga: Full Chronology 2022–2026

The Satender Kumar Antil v. CBI litigation has served as a continuous judicial-institutional supervisory mechanism through which the Supreme Court has monitored compliance with arrest reform across India.

10. The January 2026 Pronouncement: 2026 INSC 115 — What the Supreme Court Has Settled

Satender Kumar Antil v. CBI, 2026 INSC 115, decided on 15 January 2026 by Justice M.M. Sundresh and Justice Nongmeikapam Kotiswar Singh, is the most authoritative pronouncement on Section 35 BNSS to date. It resolves all central legal questions that had persisted across lower courts since the BNSS came into force.

10.1 Questions Before the Court

1. Whether notices under Section 35(3) BNSS are mandatorily to be issued in ALL cases involving sub-seven-year offences.
2. Whether, in the absence of the conditions in Section 35(1)(b)(i) and (ii), an arrest is legally justified.

10.2 The Six Operative Principles from Paragraph 33

10.3 Critical Holdings

• Endorsed Bombay HC judgment in Chandrashekhar Bhimsen Naik — making it a binding national standard.
• ‘For proper investigation’ does NOT grant unfettered discretion. The officer must specify what investigative steps require physical custody and why notice is insufficient.
• Non-compliance with notice does NOT mandate arrest. The officer must still independently form a recorded opinion that arrest is genuinely necessary.

11. The Role of the Magistrate at the Remand Stage

The Magistrate’s role when authorising detention under Section 187 BNSS (formerly Section 167 CrPC) is not passive or ministerial — it is a non-delegable judicial function of the highest constitutional order. Article 22(2) of the Constitution mandates every arrested person be produced before a Magistrate within 24 hours. That Magistrate is the last institutional safeguard between illegal State action and a citizen’s liberty.

11.1 Active Judicial Scrutiny Required at Every Remand

• Was a Section 35(3) BNSS notice issued before arrest? If not, why not?
• Has the officer recorded specific written reasons for arrest addressing the Section 35(1)(b)(ii) checklist?
• Are the reasons factually specific or merely formulaic?
• For elderly/infirm accused in sub-3-year offences: was DSP permission obtained?
• Record own satisfaction in writing — specifying which conditions are satisfied on the facts.

11.2 The Magistrate Must Not Be a Rubber Stamp

A perfunctory phrase such as “perused the report and satisfied” is constitutionally inadequate. Reasons must be applied to the specific facts. Authorising detention without independent judicial scrutiny is a dereliction of duty for which the Magistrate may face departmental action by the High Court.

11.3 Consequences of Finding Non-Compliance

• Reject the remand application.
• Order the immediate release of the accused — bail is a matter of right where Section 35 BNSS has been violated.
• Note the specific compliance failure in writing and forward to the Superintendent of Police.

12. Special Protections Under Section 35(7): Elderly and Infirm Persons

Section 35(7) is the most significant new protection introduced by the BNSS with no CrPC equivalent: 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.

The Two-Pronged Test

1. The offence carries a maximum sentence of LESS than three years; AND
2. The person is INFIRM (regardless of age) OR above 60 years of age.

Where both conditions are satisfied, prior DSP approval is mandatory — no exceptions. A Station House Officer has NO independent authority to arrest such persons. This provision directly addresses the documented pattern of elderly persons being arrested in matrimonial and property disputes as a tool of harassment.

13. Constitutional Dimensions: Articles 21, 22, and the Rule of Law

13.1 Article 21 — Life and Personal Liberty

The Supreme Court in Arnesh Kumar held that Sections 41 and 41A CrPC are facets of Article 21. Any arrest in violation of Section 35 BNSS is therefore not merely an unlawful act — it is a violation of the fundamental right to life and personal liberty. This gives the arrested person direct access to writ jurisdiction: High Court under Article 226 or Supreme Court under Article 32. The violation is not curable by subsequent compliance.

13.2 Article 22 — Rights of Arrested Persons

• Article 22(1): Right to be informed of grounds of arrest; right to consult a legal practitioner of one’s choice.
• Article 22(2): Right to be produced before a Magistrate within 24 hours of arrest.

These constitutional provisions operate in conjunction with Section 47 BNSS (grounds of arrest), Section 48 BNSS (informing relatives), and Section 58 BNSS (24-hour production rule), creating a comprehensive liberty-protective architecture.

13.3 Presumption of Innocence and Article 20(3)

An arrest is not a punishment — it is a procedural tool. Treating arrest as a default response to a complaint violates the presumption of innocence and criminalises accusation itself. Additionally, Article 20(3) guarantees that no accused shall be compelled to be a witness against themselves — providing constitutional protection against using arrest as a coercive tool to extract confessions.

14. Consequences of Non-Compliance with Section 35 BNSS

15. Practical Implications for Stakeholders

15.1 For Police Officers — Step-by-Step

• Check Section 35(7) first: Is accused above 60 or infirm AND offence < 3 years? If YES — obtain DSP permission before proceeding.
• Issue Section 35(3) BNSS notice in writing. Include: FIR number, offences, copy of FIR, specific date/time/place, adequate time for counsel.
• Physical service ONLY. No WhatsApp, SMS, or e-mail.
• Apply the nine-point checklist with specific factual reasons. “Investigation required” alone is constitutionally insufficient.
• Record reasons for NOT arresting if you decide to issue notice only.
• Forward completed checklist and materials to Magistrate when producing accused.

15.2 For Accused Persons and Defence Counsel

• Comply with the Section 35 BNSS notice. Non-compliance exposes you to arrest.
• If arrested without prior notice: immediately challenge before the Magistrate and file for bail on grounds of illegal arrest. If needed, file writ of habeas corpus.
• Insist the Magistrate examine and record satisfaction with the reasons before authorising remand.
• Right to inspect written reasons recorded under Section 35(1)(b) and challenge their adequacy.

15.3 For Judicial Magistrates

• Treat every production as active judicial review, not routine administration.
• Verify notice was issued; reasons are specific; checklist conditions addressed; DSP permission obtained if applicable.
• Record your own specific satisfaction in writing. A perfunctory phrase is unconstitutional.
• Submit monthly compliance reports to the High Court monitoring committee.

15.4 For State Governments and Police Establishments

• Issue Standing Orders incorporating Arnesh Kumar guidelines and Section 35 BNSS requirements. Physical service of notices only — no electronic service.
• Impart mandatory training to all investigating officers. Include Section 35 BNSS module in all police academies.
• Establish internal monitoring at SP level. Non-compliance must be treated as a serious disciplinary matter.

16. Criticism and Counterpoints

16.1 Women’s Rights Perspective

The Arnesh Kumar judgment has been criticised by women’s rights advocates who argue that notice and checklist requirements create procedural hurdles that delay protective custody for abusers in domestic violence cases, exposing victims to continued risk. This criticism has merit in specific factual contexts. The response lies within the framework itself: the checklist expressly includes prevention of further offences and witness protection as valid grounds for immediate arrest. A police officer who records specific facts demonstrating proximate risk of further violence will satisfy the conditions for immediate arrest and will be acting entirely lawfully.

16.2 Practical Implementation Challenges

• Inadequate training of officers on checklist requirements.
• Formulaic, pro forma recording of reasons that satisfies the letter but not the spirit.
• Magistrates continuing to authorise remand without meaningful scrutiny.
• Circumvention through multiple FIRs where one carries a sentence exceeding seven years.

16.3 The ‘Investigation Convenience’ Loophole

The phrase “for proper investigation” had historically been invoked as a universal justification for arrest. The Supreme Court’s 2026 INSC 115 holding — that this phrase does NOT grant unfettered discretion — is a critical correction. Effective enforcement requires sustained judicial vigilance at the remand stage. The battle between the letter of the law and investigative convenience continues at the ground level.

17. Emerging Trends and Unresolved Questions

17.1 Interplay with Special Statutes — PMLA, NDPS, UAPA

Section 35 BNSS governs arrests under the Bharatiya Nyaya Sanhita, 2023 and other general penal statutes. Special statutes such as PMLA, NDPS, and UAPA have their own stringent arrest and bail provisions, placed by the Supreme Court in Category D (Satender Kumar Antil 2022). The extent to which Section 35’s notice requirements apply to special statute arrests remains a developing area requiring further judicial clarification.

17.2 Arrest and the Digital Evidence Paradigm

The BNSS introduces forensic investigation mandates and digital evidence collection provisions. An unresolved question is whether the necessity to collect digital evidence from the accused’s devices constitutes a ground for arrest under the ‘proper investigation’ limb of Section 35(1)(b)(ii). Courts have not yet laid down definitive principles on this intersection of arrest law and digital forensics.

17.3 Institutional Monitoring and Undertrial Reform

The Supreme Court’s direction to High Courts to establish monitoring committees is still being implemented with varying commitment across India’s 25 High Courts. The undertrial population — consistently over 75% of India’s total prison population per NCRB data — is directly affected by arrest reform. Fewer unnecessary arrests mean fewer unconvicted persons in India’s overcrowded prisons. The Supreme Court’s continuing supervision through the Satender Kumar Antil proceedings, including NALSA-facilitated bail, represents a holistic effort to address this systemic problem.

18. Conclusion: Notice Is the Rule, Arrest Is the Exception

The legislative and judicial evolution of India’s arrest law — from the colonial CrPC through the Arnesh Kumar guidelines of 2014, the enactment of the BNSS in 2023, its coming into force on 1 July 2024, and the authoritative 2026 INSC 115 pronouncement — represents a sustained, multi-decade effort to recalibrate the balance between State power and personal liberty. The trajectory is clear and irreversible: from arrest as the default to arrest as the exception.

The governing principles as of 26 March 2026 are settled:

9. For sub-seven-year offences, the police must issue a Section 35(3) BNSS notice before any arrest — as a mandatory matter of course.

• Arrest requires simultaneous satisfaction of both Section 35(1)(b)(i) and at least one condition under Section 35(1)(b)(ii) — each specifically recorded in writing.
• ‘Proper investigation’ does not confer unbridled discretion — specific investigative necessity must be recorded.
• For persons above 60 years or infirm, in sub-3-year offences, prior DSP approval is mandatory.
• Notices may only be served physically — electronic service is prohibited.
• The Magistrate must independently scrutinise compliance and record their own satisfaction.
• Non-compliance = bail as of right + departmental action + potential contempt.

“Notice is the rule and arrest is the exception. This is the authoritative crystallisation of a principle building through India’s courts since Joginder Kumar in 1994.”
— 2026 INSC 115, Supreme Court of India

The true test of this evolution lies not in judicial pronouncements but in the rigour with which they are implemented on the ground — in police stations, before Magistrates, and in the broader criminal justice apparatus of India. That test remains ongoing.

Key Case Table: Landmark Judgments on Police Arrest Powers in India

Statutory Cross-Reference: CrPC Provisions vs BNSS Equivalents

Frequently Asked Questions (FAQs): Section 35 BNSS

The following FAQs address the most commonly searched questions on Section 35 BNSS, police arrest powers, and the Arnesh Kumar guidelines in India.

Q: What is Section 35 BNSS?

A: Section 35 BNSS is India’s primary law on police arrest without warrant, in force from 1 July 2024. It replaced Sections 41 and 41A CrPC. For offences punishable up to seven years, it mandates a written notice before any arrest. The Supreme Court in 2026 INSC 115 confirmed: notice is mandatory as a matter of course and arrest is the exception.

Q: Can police arrest without a notice under Section 35 BNSS?

A: For sub-seven-year offences, NO. A Section 35(3) BNSS notice is mandatory before arrest as confirmed by 2026 INSC 115. Arrest without prior notice is unlawful and entitles the accused to bail as a matter of right. The officer must also record specific written reasons satisfying both Section 35(1)(b)(i) and at least one condition under Section 35(1)(b)(ii).

Q: What did the Supreme Court hold in 2026 INSC 115?

A: The Supreme Court laid down six operative principles: (a) Arrest is a discretion, not a mandate; (b) The officer must ask whether arrest is a necessity; (c) Both Section 35(1)(b)(i) and any one condition of Section 35(1)(b)(ii) must exist simultaneously; (d) Notice under Section 35(3) is mandatory as a matter of course; (e) Even where conditions exist, arrest shall not be made unless absolutely warranted; (f) Arrest after notice non-compliance is an exception, not routine.

Q: What is the Arnesh Kumar checklist and does it apply under BNSS?

A: The Arnesh Kumar checklist requires a police officer to record in writing whether arrest is necessary for any of nine specific purposes under Section 35(1)(b)(ii) BNSS. It continues to apply in full under the BNSS and was expressly reaffirmed by the Supreme Court in 2026 INSC 115. It applies universally to ALL offences punishable up to seven years.

Q: Can Section 35 BNSS notices be served by WhatsApp or e-mail?

A: No. The Supreme Court on 21 January 2025 definitively held that notices under Section 35(3) BNSS cannot be served by WhatsApp, e-mail, SMS, or any electronic mode. Only physically prescribed modes of service are valid. This was reaffirmed in 2025 INSC 909.

Q: What is the special protection for elderly persons under Section 35(7) BNSS?

A: Section 35(7) BNSS provides that no arrest shall be made without prior DSP permission where: (a) the offence carries a maximum sentence of less than three years; AND (b) the person is infirm OR above 60 years of age. A Station House Officer has no independent authority to arrest such persons. This entirely new provision has no CrPC equivalent.

Q: What happens if police arrest someone without following Section 35 BNSS?

A: Consequences: (1) Accused entitled to bail as a matter of right; (2) Magistrate must reject remand and order release; (3) Police officer faces mandatory departmental action; (4) Officer may face contempt of court; (5) Accused may file habeas corpus before HC/SC; (6) Civil suit for damages for false imprisonment is available.

Q: What is the difference between Section 41 CrPC and Section 35 BNSS?

A: Section 35 BNSS replaced Sections 41 and 41A CrPC on 1 July 2024. Key improvements: (1) Arrest power and notice requirement consolidated in one provision; (2) New Section 35(7) protection for elderly/infirm persons requiring DSP permission; (3) Section 43(3) BNSS codifies handcuff restrictions; (4) Proviso expressly requires recording reasons for NOT arresting; (5) Notice content requirements (from Delhi HC guidelines) continue to apply.