Authored By: Ritika Pal
St. Xavier's University Kolkata
Introduction
The shift from the Code of Criminal Procedure, 1973 (CrPC) to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is among the most substantial procedural alterations in the Indian criminal justice system.1 One of the principal changes is the reconstitution of the notice of appearance before arrest. The prior legal regime for this procedure was Section 41A of the CrPC, which has now been replaced by Section 35 of the BNSS.2 Although these two statutes are distinct, their core objectives remain aligned: to regulate the powers of arrest, reinforce constitutional protections, and bring police procedures into compliance with individual liberty rights.
A significant development in this area arose in Satender Kumar Antil v. Central Bureau of Investigation,3 where the Supreme Court of India reiterated that no notice under Section 41A CrPC can be validly served through electronic means — such as WhatsApp, email, or SMS — as such modes do not constitute proper service under the statutory scheme. This ruling followed growing judicial concern over cases in which police served notices through digital channels to which the accused did not have reliable access.
Arrest as Exception: The Journey to Section 41A CrPC
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.4 The provision empowers a police officer to issue a Notice of Appearance, directing the accused to present themselves before the investigating authority at a specified place and time, rather than resorting to immediate arrest, provided the circumstances prescribed under the statute are satisfied.
In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273,5 the Supreme Court delivered a landmark judgment on the issue of unwarranted and arbitrary arrests. The Court emphasised that all arrests for offences punishable with imprisonment of up to seven years must strictly comply with the safeguards laid down in Section 41 of the CrPC.6 These guidelines were specifically designed to prevent the misuse of arrest powers, to ensure police accountability, and to uphold the fundamental right to personal liberty under Article 21 of the Constitution. The Court further held that any non-compliance would expose the officer concerned to departmental action as well as contempt proceedings before the relevant High Court. The judgment thus established a foundational precedent for protecting the rights of accused persons and curbing mechanical or routinised arrests.
Building on these principles, the Delhi High Court issued detailed directions in Amandeep Singh Johar v. State (NCT of Delhi), 2018 SCC OnLine Del 13448,7 concerning the mandatory procedure to be followed when issuing a notice under Section 41A CrPC. The petition arose from repeated police summons issued to an individual without adherence to proper procedure. The Court observed that the statutory requirements were not being strictly followed and accordingly laid down a structured mechanism to facilitate transparency and fairness in the process.
Further fortifying these safeguards, the Delhi High Court in Rakesh Kumar v. Vijayanta Arya, 2021 SCC OnLine Del 5629,8 emphatically held that service of notice under Section 41A through WhatsApp, email, or any other electronic modality is invalid, as such modes are not contemplated by the CrPC. In that case, the petitioner was arrested after receiving a virtual notice in lieu of a formal physical one. The Court held the investigating officer in contempt, affirming that personal liberty can only be curtailed by following due process of law. The ruling reinforced strict adherence to statutory procedure and the binding directions previously issued by the Supreme Court.
The Advent of Section 35, BNSS: Redefining the Law of Arrest
The transition from Section 41A of the CrPC to Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 marks a modern, reformist turn in India’s arrest framework.9 It reinforces police accountability by establishing that arrest on grounds of genuine necessity — rather than routine — is the correct standard for balancing police powers against individual liberty. Section 35 permits arrest without a warrant for cognizable offences committed in the presence of the officer, or upon credible information establishing involvement in such an offence, provided the arrest is necessary to prevent further offences, ensure proper investigation, avoid tampering with evidence, protect witnesses, or secure the accused’s appearance before court. The provision mandates written recording of reasons for both arrest and non-arrest. It also addresses serious offences attracting sentences exceeding seven years, proclaimed offenders, and other specified contingencies. Most importantly, it restricts arrests for non-cognizable offences, introduces a notice of appearance mechanism, and incorporates special safeguard provisions for elderly and infirm persons — all of which reinforce procedural fairness.
Comparison10
| Aspect | Sec 41A CrPC | Sec 35 BNSS |
|---|---|---|
| Placement | Separate stand-alone section | Inbuilt within the arrest procedure framework |
| Purpose | Reduce unnecessary arrests | Strengthen liberty, promote reasoned policing, and ensure procedural compliance |
| Notice Requirement | Mandatory for offences carrying up to 7 years’ imprisonment | Required both for issuing notice and for effecting arrest; emergency compliance checklist applies |
| Recording of Reasons | Primarily required for arrest | Required for both issuing notice and effecting arrest |
| Digital Mode of Service | Not expressly recognised; courts have held electronic service invalid | Addressed in statute; however, courts have affirmed that physical service remains mandatory — electronic modes are not valid |
| Police Accountability | Limited | High — written reasons, digital record-keeping, judicial review |
| Legal Standards | Largely interpretative; dependent on judicial elaboration | Codified in statute — enforceability does not rely on case law alone |
| Consequences of Non-Compliance | Arrest permissible with recorded reasons | Arrest permissible only after establishing wilful non-compliance and necessity |
Section 35 of the BNSS: Prospects and Challenges in Modernising Policing
Section 35 of the BNSS, functioning as the successor to Section 41A CrPC, makes the arrest process for petty offences more citizen-friendly by prioritising notice of appearance over immediate custody.11 It requires reasons for arrest to be formally communicated, provides for senior-level review, enables digital tracking, and prescribes strict timelines — collectively limiting arbitrary arrests and alleviating prison overcrowding. The provision is not without its challenges: infrastructural gaps, limited digital access in many parts of the country, and resistance from law enforcement due to reduced police discretion all pose practical hurdles. Ultimately, the efficacy of Section 35 will depend on effective training, investment in infrastructure, and consistent enforcement on the ground.
The Rights and Protection of Citizens
Section 35 of the BNSS strengthens citizens’ rights by mandating notice before arrest, requiring clear communication of charges, and imposing an obligation to provide written justification for any exceptions to the notice requirement. Mechanisms for digital monitoring and senior officer oversight add layers of transparency, safeguarding individuals against arbitrary detention without cause. At the same time, the provision seeks to ensure swiftness, fairness, and proportionality in the handling of minor infractions through enhanced accountability.
Conclusion
The transition from Section 41A of the Code of Criminal Procedure to Section 35 of the BNSS marks a significant step in the modernisation of India’s criminal procedure. The mandatory notices, obligatory documentation, and digital tracking mechanisms, taken together, position the BNSS as a stronger safeguard of citizens’ rights and a more robust framework for police accountability. These reforms hold the promise of preventing unnecessary arrests, reducing prison overcrowding, and promoting transparency — ultimately contributing to a more balanced criminal justice system.12
Nevertheless, practical challenges remain: infrastructural deficiencies, the need for officer training, and the imperative of strict adherence to prescribed timelines will all require sustained attention.13 Notwithstanding these concerns, Section 35 of the BNSS represents a modern, rights-based reform that seeks to recalibrate the scales between law enforcement imperatives and individual freedom. Its full realisation will require rigorous implementation, consistent judicial monitoring, and broad public awareness — to build a justice system that is not only efficient, but genuinely fair.
Reference(S):
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 Arnesh Kumar v State of Bihar (2014) 8 SCC 273 (SC).
6 Code of Criminal Procedure 1973, s 41A; Arnesh Kumar v State of Bihar (2014) 8 SCC 273 (SC).
7 Amandeep Singh Johar v State (NCT of Delhi) 2018 SCC OnLine Del 13448.
8 Rakesh Kumar v Vijayanta Arya 2021 SCC OnLine Del 5629.
9 Sakshi, ‘Arrest Illegal if Police Do Not Record Reasons After Compliance with Notice Under BNSS: Bombay HC’ LawBeat (1 October 2025) <https://lawbeat.in/news-updates/arrest-illegal-if-police-do-not-record-reasons-after-compliance-with-notice-under-bnss-bombay-hc-1532661> accessed 18 January 2026.
10 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.
11 Bharatiya Nagarik Suraksha Sanhita 2023, s 35.
12 Law Commission of India, Report No 268: Amendments to Criminal Procedure Code (2017). [Note: Author to verify report number — the relevant Law Commission report on CrPC reform may be Report No. 277 (2018).]
13 Re: Contagion of COVID-19 in Prisons (2020) 5 SCC 313 (SC).
