INTRODUCTION
The shift from the Code of Criminal Procedure, 1973 (CrPC) to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is amongst the most substantial procedural alterations in the Indian criminal justice system.[1] One of the main alterations is the change in the notice of appearance before arrest. The prior legal regime for this procedure was Section 41A of the CrPC and has now been shifted to Section 35 of the BNSS.[2] Even though these two statutes are now separate, their main objectives are to exercise the powers of arrest, bolster constitutional protections, and ensure that police procedures comply with individual liberty rights.
Satender Kumar Antil vs. CBI[3] in the case, the Supreme Court of India reiterated that no notice whatsoever can be effectively delivered to an accused through electronic methods such as WhatsApp, email, or SMS, among other applications. This came about as a result of drawing the attention of the Court to cases where police find it is not possible to access the WhatsApp account of the accused person when notices are delivered through these electronic modes.
ARREST AS EXCEPTION: THE JOURNEY TO SECTION 41A CrPC[4]
Section 41A of the CrPC was introduced in 2009 by the Criminal Law (Amendment) Act. Its stated purpose was to prevent unnecessary arrests in cases involving minor offences and to make policing more citizen-friendly.[5] The provision gives the police officer the power to issue a Notice of Appearance to the accused to appear before the investigating authority at a particular place and at a particular time, instead of arresting the person immediately, if the circumstances as required under the statute are satisfied. In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273,[6] the Supreme Court gave a landmark judgment on the issue of unwarranted and arbitrary arrests. The Court emphasised that all arrests for offences punishable with imprisonment up to seven years must strictly comply with the safeguards laid down in Section 41 of the CrPC.[7] These guidelines were specifically designed to prevent the misuse of arrest powers, to ensure police responsibility, and to uphold the basic right to personal liberty under Article 21 of the Constitution. The Court stated that any non-compliance would make the police officer concerned liable for departmental action as well as contempt of court before the High Court concerned. Thus, the judgment set a foundation precedent for protecting the rights of accused persons and preventing arrests which are routinised or mechanical.
Building on these principles, a detailed direction was issued by the Delhi High Court in Amandeep Singh Johar v. State of NCT of Delhi, 2018 SCC On Line Del 13448,[8]qua the mandatory procedure to be followed for the issue of notice under Section 41A CrPC. The matter arose from a writ petition filed by an individual who was repeatedly summoned by police without proper notice. The Court observed that the procedural requirements were not being strictly adhered to by the police, and thus laid down a structured mechanism that would facilitate transparency and fairness.
Further fortifying these safeguards, the Delhi High Court, in the case of Rakesh Kumar v. Vijayanta Arya, 2021 SCC On-line Del 5629,[9] emphatically held that service of notice under Section 41A through WhatsApp, email, or any electronic modality is invalid as such modes are not within the contemplation of the CrPC. In this case, the petitioner was arrested after receiving a virtual notice instead of a formal notice. The Court held that the investigating officer was in contempt, stating that the personal liberty of an individual could not be infringed, and it could only be curtailed by following due process of law. The ruling emphasised strict adherence to the statutory procedure and binding directions laid down by the Supreme Court.
THE ADVENT OF SECTION 35, BNSS: REDEFINING THE LAW OF ARREST[10]
The changeover from Section 41 of the CrPC to Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, marks a modern, reformist turn in the arrest framework of India. In doing so, it reinforces police accountability by asserting that arrest on grounds of necessity rather than routine is the correct standpoint for achieving a balanced relational approach between police powers and individual liberty. Section 35 allows for arrest without a warrant for cognizable offences committed in the presence of the officer or on any credible information showing involvement in a cognizable offence, provided such arrest must be necessary to prevent further offences, ensure proper investigation, avoid tampering with evidence, protect witnesses, or ensure appearance before court. The said provision requires giving in writing the reasons for arrest or non-arrest. It also covers serious offences that attract more than seven years’ imprisonment, proclaimed offenders, and other stated contingencies. Most importantly, it limits arrests for non-cognizable offences, introduces notice of appearance, and carries special safeguard provisions for elderly and infirm persons, which reinforce procedural fairness.
COMPARISON[11]
Aspect | Sec 41A CrPC | Sec 35 BNSS |
Placement | Separate standalone section | Inbuilt within the early arrest procedure. |
Purpose | Reduce unnecessary arrests | Strengthen liberty + digital compliance + reasoned policing |
Notice Requirement | Mandatory for offences ≤ 7 years | For issuing notice and for arrest. In case of an emergency checklist is important. |
Recording of Reasons | Mainly for arrest. | For issuing notice and for arrest. |
Digital Mode | Not expressly recognised | Explicitly recognised – WhatsApp, email, electronic service. |
Police Accountability | Limited | High – written reasons, digital record, judicial review |
Legal Standards | Interpretative | Codified in statute – no reliance on case law for enforceability |
Consequences of Non-Compliance | Arrest with reasons | Arrest only after establishing wilful non-compliance and necessity |
SEC 35 OF THE BNSS: PROSPECTS & CHALLENGES IN MODERNIZING POLICING[12]
The revised Section 35 of the BNSS, considered a new Section 41A CrPC, makes the process for arrest in cases related to petty offences more citizen-friendly: notice of appearance rather than immediate custody takes precedence. Reasons for arrest must be made known; it provides for senior-level review, digital tracking, and strict timelines that limit arbitrary arrests and reduce jail congestion. It has its challenges in the form of infrastructural gaps, limited digital access, and resistance due to reduced police discretion. Ultimately, its effect will depend upon effective training, infrastructure, and consistent enforcement on the ground.
THE RIGHTS & PROTECTION OF CITIZENS
Section 35 BNSS grants powers to citizens by mandating notice before arrest, clear communication of charges, and written justification for any exceptions. Digital monitoring and higher officer examination add to the openness, safeguarding persons from foster detainment without cause and at the same time supporting the stability, justice, and promptness in minor infractions through accountability.
CONCLUSION
The transition from Section 41A of the Criminal Procedure Code to Section 35 of the BNSS Law indicates the modernisation of India’s criminal procedure. The mandatory notifications, forced documentation, and digital tracking, combined, make BNSS a stronghold of citizens’ rights and a channel for police accountability. It will prevent unnecessary arrests, decongest the jails, and promote transparency, which will ultimately help in creating a criminal justice system that is more balanced.[13] Nevertheless, there are still practical issues to be faced, like the lack of infrastructure, the necessity of training the officers, and the strict adherence to the timelines set for the different procedures.[14] Withal, Section 35 BNSS is a modern, rights-based reform that seeks to balance the scales of law enforcement and individual freedom. It will require rigorous implementation, judicial monitoring, and public awareness to make the justice system not only efficient but also fair.
Author’s Name: Ritika Pal (St. Xavier’s University, Kolkata)
[1] ANI, ‘New criminal laws passed by Parliament are revolutionary and transformative: Union Law Minister’ Times of India (23 December 2023)
https://timesofindia.indiatimes.com/india/new-criminal-laws-passed-by-parliament-are-revolutionary-and-transformative-union-law-minister/articleshow/106236277 accessed 18 January 2026
[2] Bharatiya Nagarik Suraksha Sanhita, 2023, s 35
[3] Satender Kumar Antil v Central Bureau of Investigation (2022) 10 SCC 51 (SC)
[4] CJP Team, Upholding procedural compliance, Supreme Court reaffirms electronic service of notices under Section 41A CrPC/Section 35 BNSS as invalid (Citizens for Justice and Peace, 3 February 2025) https://cjp.org.in/upholding-procedural-compliance-supreme-court-reaffirms-electronic-service-of-notices-under-section-41a-crpc-section-35-bnss-as-invalid/ accessed 18 January 2026.
[5] Code of Criminal Procedure 1973, s 41A
[6] Arnesh Kumar v State of Bihar (2014) 8 SCC 273 (SC).
[7] Code of Criminal Procedure 1973, s 41A; Arnesh Kumar v State of Bihar (2014) 8 SCC 273 (SC)
[8] Amandeep Singh Johar v. State (NCT of Delhi) 2018 SCC On-Line Del 13448,
[9] Rakesh Kumar v. Vijayanta Arya, 2021 SCC On-line Del 5629
[10] Sakshi, ‘Arrest Illegal if Police Do Not Record Reasons After Compliance with Notice Under BNSS: Bombay HC’ LawBeat (1 October 2025)
accessed 18 January 2026
[11] Apoorva, Supreme Court: Physical Service Mandatory for Section 35 BNSS Notices; Electronic Communication Not Valid (SCC Online Blog, 31 July 2025) https://www.scconline.com/blog/post/2025/07/31/supreme-court-section-35-bnss-notices-physical-service-mandate/
accessed 18 January 2026
[12] Bharatiya Nagarik Suraksha Sanhita 2023, s 35
[13] Law Commission of India, Report No 268: Amendments to Criminal Procedure Code (2017)
[14] Re: Contagion of COVID-19 in Prisons (2020) 5 SCC 313 (SC)
