Section 41A CrPC in BNSS: Section 35 Arrest and Notice Rules

Section 41 CrPC (arrest without warrant) and Section 41A CrPC (notice of appearance) have been merged into Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), from 1 July 2024. The power to arrest is in Section 35(1), the notice of appearance is in Section 35(3) to (6), and a new Section 35(7) needs a DSP’s prior permission to arrest an infirm person or a person above sixty for an offence punishable with less than three years.

What Section 35 BNSS provides

Arrest without warrant: Section 35(1)

Section 35(1) lists situations where police can arrest without a Magistrate’s order or warrant. The main ones are: a cognizable offence committed in the officer’s presence; a cognizable offence punishable with up to seven years, subject to clause (b); a cognizable offence punishable with more than seven years or death, on credible information; a proclaimed offender; possession of suspected stolen property; and obstructing police or escaping from lawful custody.

Clause (b) is the heart of the arrest-protection scheme. For offences punishable with up to seven years, two things are needed. First, the officer must have reason to believe the person committed the offence. Second, arrest must be necessary for one of the stated purposes: to prevent further offences, for proper investigation, to prevent tampering with evidence, to prevent threats or inducement to witnesses, or to secure the person’s presence in court. The officer must record reasons in writing for arresting, and also for not arresting.

Notice of appearance: Section 35(3) to (6)

Where arrest is not required under Section 35(1), the officer must issue a notice directing the person to appear before him or at a specified place. The person must comply. So long as he complies, he cannot be arrested for that offence unless the officer records reasons for believing arrest is necessary. If he fails to comply or refuses to identify himself, the officer may arrest him, subject to any court order.

Old and infirm persons: Section 35(7)

This is new. For an offence punishable with less than three years, an infirm person or a person above sixty years cannot be arrested without the prior permission of an officer not below the rank of Deputy Superintendent of Police.

What changed from Sections 41 and 41A CrPC

• Merger: The two sections are combined. Old Section 41A is now Section 35(3) to (6).
• New Section 35(7): The DSP-permission rule for the elderly and the infirm had no equivalent in Section 41 CrPC.
• No electronic notice: The BNSS allows electronic modes for many steps, but the Supreme Court has held that Section 35 notices cannot be served through WhatsApp or other electronic means.

Important case law

Arnesh Kumar v. State of Bihar (2014)

Arising from a Section 498A IPC case, the Supreme Court held that police must not arrest automatically in offences punishable with up to seven years. It directed that police use a checklist of the necessity conditions and forward it, with reasons and materials, to the Magistrate. The Magistrate must record his own satisfaction before authorising detention. Non-compliance exposes police officers to departmental action and contempt.

Satender Kumar Antil v. CBI (2022)

Decided on 11 July 2022, this case divided offences into categories for bail. For offences punishable with up to seven years (Category A), it held that the process should move from summons to warrants, and that non-compliance with Sections 41 and 41A by the police entitles the accused to bail.

Satender Kumar Antil orders on electronic service (2025)

By an order of 21 January 2025, the Supreme Court held that notices under Section 41A CrPC and Section 35 BNSS cannot be served through WhatsApp or other electronic modes. In July 2025 it rejected Haryana’s plea to modify this, because the notice affects personal liberty under Article 21.

Common confusions

• Notice is not immunity: A notice under Section 35(3) protects only while you comply. Missing the date can lead to arrest under Section 35(6).
• “Above sixty” rule: Section 35(7) is limited to offences punishable with less than three years.

Practical guide for the public

If police contact you in an offence punishable with seven years or less, ask whether a written notice under Section 35(3) BNSS is being issued. Attend on the date with the notice and identity proof. If you cannot attend, write to the officer in advance and keep proof.

If you are arrested despite complying, or without reasons recorded, the point can be raised before the Magistrate at first production (within 24 hours of arrest) to oppose remand and seek bail. If you are above sixty or infirm and the offence carries less than three years, ask whether DSP permission was taken.

Exam angle

• Section 41 + 41A CrPC = Section 35 BNSS; notice of appearance is in Section 35(3).
• Section 35(7): less than three years offence, infirm or above sixty, DSP-level prior permission. A new provision.
• Arnesh Kumar (2014) governs arrests in offences up to seven years; it arose from a Section 498A IPC case.
• Satender Kumar Antil (2022) created Categories A to D for bail and linked non-compliance with 41/41A to bail.
• Electronic service of a Section 35 notice is not valid (Supreme Court, 2025).

Frequently asked questions

What is the new section for 41A CrPC notice?

The notice of appearance under old Section 41A CrPC is now in Section 35(3) to (6) of the BNSS, 2023.

Can police arrest me after giving a Section 35 notice?

Only if you fail to comply or refuse to identify yourself, or if the officer records reasons showing that arrest is necessary despite your compliance.

Can police send a Section 35 notice on WhatsApp?

No. The Supreme Court in Satender Kumar Antil (orders of January and July 2025) held that electronic service of these notices is not valid.

Can a person above 60 years be arrested?

Yes, but if the offence is punishable with less than three years, police need the prior permission of an officer not below DSP rank under Section 35(7) BNSS.

Quick quiz

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023: Section 35
• Code of Criminal Procedure, 1973: Sections 41 and 41A
• Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
• Satender Kumar Antil v. CBI, Supreme Court, 11 July 2022, and orders of 21 January 2025 and July 2025

This page is for education and general information, not legal advice for a specific case.