Section 35 BNSS: When police may arrest without warrant (Formerly Sections 41 & 41A CrPC)

Section 35 of Bharatiya Nagarik Suraksha Sanhita, 2023: When police may arrest without warrant

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—

(a) who commits, in the presence of a police officer, a cognizable offence; or

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest; or

(c) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; or

(d) who has been proclaimed as an offender either under this Sanhita or by order of the State Government; or

(e) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(f) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(g) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(h) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(i) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 394; or

(j) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Subject to the provisions of section 39, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.

(3) The police officer shall, in all cases where the arrest of a person is not required under sub-section (1) issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(4) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Cognizable Offence Sec 2(1)(c) Complaint Sec 2(1)(d) Investigation Sec 2(1)(h)

Legal Commentary & Landmark Judgments: Section 35

Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 establishes the statutory powers, conditions, and strict procedural safeguards governing when a police officer may arrest a person without a warrant.

Statutory Powers & Jurisdiction: Section 35 incorporates statutory safeguards balancing law enforcement powers with Article 21 personal liberty.
Process Issuance & Attendance: Under sub-section (1)(a), police may arrest without warrant any person who commits a cognizable offence in their presence.
Inquiry & Trial Mechanism: Under sub-section (1)(b), for offences punishable with imprisonment of seven years or less, arrest is strictly conditional: the officer must have reason to believe the person committed the offence and must be satisfied that arrest is necessary to prevent further offences, ensure proper investigation, prevent evidence tampering, stop witness intimidation, or secure court presence.
Core Legal Standard: The officer must record reasons in writing for making or not making an arrest.

Crucially, sub-section (7) creates a special safeguard: no arrest can be made without prior permission of a Deputy Superintendent of Police (DSP) if the offence carries less than three years imprisonment and the person is infirm or over sixty years of age.

Key Landmark Precedents:

Arnesh Kumar v. State of Bihar (2014) 8 SCC 273: The Supreme Court mandated strict adherence to statutory arrest safeguards (now under Section 35 BNSS) for offences punishable up to 7 years; held that mechanical or routine arrests violate Article 21, directing magistrates not to authorize detention without verifying compliance.
D.K. Basu v. State of West Bengal (1997) 1 SCC 416: Laid down constitutional benchmarks against custodial violence, requiring clear identification tags, arrest memos, medical checkups, and contemporaneous intimation of arrest to relatives.
Satender Kumar Antil v. CBI (2022) 10 SCC 51: Reaffirmed that non-compliance with statutory notice of appearance and arrest guidelines entitles the accused to immediate bail, exposing defaulting police officers to departmental action and contempt of court.

Legal Commentary:

Section 35 is the primary shield against arbitrary police incarceration in India. The mandatory issuance of a notice under Section 35(3) transforms arrest from a routine preliminary step into a measure of absolute necessity. For defense practitioners, challenging illegal arrest under Section 35 is fundamental to securing immediate bail under Section 480 or approaching the High Court for quashing.