BNSS and Arrest Procedure: Understanding Section 35 of Bharatiya Nagarik Suraksha Sanhita, 2023

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 BNSS and Arrest Procedure: Understanding Section 35 of Bharatiya Nagarik Suraksha Sanhita, 2023

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023—which replaces the CrPC (Code of Criminal Procedure)—introduces key changes in criminal procedure, especially related to arrest. One of the most discussed provisions is Section 35, which provides a clear framework for when and how a person can be arrested. The intent of this section is to balance police authority with citizens’ rights.

This article breaks down Section 35 of BNSS, compares it with the older provisions of CrPC, and discusses its practical significance.

🏛️ 1. Background: Why BNSS Was Introduced

The CrPC had been in force since 1973, with roots in the colonial-era Code of 1898. Over time, its procedures became outdated and inconsistent with modern principles of justice and individual rights. With the introduction of BNSS, India aims to modernize and simplify its criminal procedure system.

📘 2. What Does Section 35 of BNSS Say?

Section 35 of BNSS, 2023 lays down the conditions under which police can arrest a person without a warrant in a cognizable offence.

Here is a simplified version of the section:

Police can arrest a person without warrant in a cognizable offence if:

a) The offence is punishable with more than 7 years imprisonment or death, and arrest is necessary.

b) If the offence is punishable with less than 7 years, arrest can only be made if police records specific reasons in writing showing why it is necessary (e.g., to prevent further crime, ensure investigation, or prevent tampering of evidence).

c) If arrest is not necessary, a notice of appearance (like Section 41A of CrPC) should be issued.

✅ 3. Key Highlights of Section 35 BNSS

  • No automatic arrest in cases with punishment less than 7 years.

  • Mandatory recording of reasons for arrest by police.

  • Ensures judicial oversight and transparency in arrest process.

  • Encourages use of notice of appearance in minor offences.

  • Police officer must conduct a necessity test before arrest.

⚖️ 4. The “Necessity Test” for Arrest

Before arresting in minor offences (punishable with ≤ 7 years), the police officer must assess:

  • Is the person likely to commit a further offence?

  • Is arrest necessary to ensure proper investigation?

  • Is there a risk of tampering with evidence or threatening witnesses?

  • Will the accused fail to appear before the court?

Unless answers to these are yes, arrest is not allowed. This makes the arrest process more accountable and legally robust.

🔍 5. Comparison with CrPC Section 41

Feature CrPC (Section 41) BNSS (Section 35)
Arrest without warrant Permitted in cognizable offences Permitted but with stricter checks
Reason for arrest in minor offence Not mandatory to record Must record specific reasons in writing
Notice to appear (before arrest) Provided under Section 41A CrPC Incorporated directly in Section 35
Focus Police discretion Judicial accountability, citizen rights

BNSS improves upon CrPC by bringing structure and safeguards into the arrest process.

📌 6. Example Case: How Section 35 Applies

Suppose a person is accused of cheating under Section 420 of IPC (now replaced by BNS), which carries up to 7 years imprisonment.

Under CrPC:

  • Police could arrest directly.

Under BNSS Section 35:

  • Police must evaluate necessity.

  • If not necessary, they must issue a notice of appearance, not arrest.

  • If arrested, they must record reasons and present it to the Magistrate.

This helps protect individuals from arbitrary arrests and upholds the principle of "bail, not jail".

🛑 7. Misuse of Arrest Powers: A Persistent Problem

India has seen numerous cases where arrest powers are misused:

  • Arrests made without valid reason in civil disputes.

  • Political or vendetta-based detentions.

  • Bail being denied unnecessarily.

Section 35 attempts to address this by:

  • Holding police officers accountable.

  • Allowing courts to question improper arrests.

  • Ensuring the accused is treated fairly unless proven guilty.

👩‍⚖️ 8. Role of the Magistrate

When the police arrest someone under Section 35, they must present:

  • Written reasons justifying the arrest.

  • Statement on why notice of appearance was not sufficient.

The Magistrate will:

  • Scrutinize the arrest report.

  • Ask questions if the arrest appears unjustified or mechanical.

  • Order release or bail if the arrest is found unnecessary.

Thus, judicial oversight is built into the arrest process to safeguard rights.

🧾 9. Consequences of Violating Section 35

If police violate Section 35:

  • The arrest may be declared illegal.

  • The accused may be entitled to bail or compensation.

  • Disciplinary action may be taken against the officer.

  • The court may drop proceedings due to procedural lapses.

This helps build trust in the legal system and ensures no citizen is deprived of liberty without due cause.

📑 10. Challenges in Implementation

While Section 35 is progressive, there are practical challenges:

  • Many police officers lack awareness of the new procedure.

  • Training and guidelines are yet to be fully implemented.

  • Pressure from complainants or political interests still influences arrests.

  • Courts may differ in interpreting “necessity” for arrest.

To make this effective, legal education, police reform, and active judiciary are needed.

📚 11. What the Courts Have Said (Judicial Precedents)

Even before BNSS, the Supreme Court in Arnesh Kumar v. State of Bihar (2014) laid down that:

"No arrest should be made merely because the offence is cognizable and non-bailable. Arrest must be justified."

Section 35 now puts this judicial wisdom into statutory law—a major legal development.

✅ 12. What an Accused Person Should Do

If someone is facing a complaint:

  • Know your rights under Section 35.

  • Insist on a notice of appearance, not arrest, if the offence is minor.

  • Demand that police record and provide reasons for arrest.

  • Approach the Magistrate or High Court if rights are violated.

🏁 Conclusion: Section 35 is a Step Toward Responsible Policing

BNSS Section 35 marks a major shift in the way India handles arrests. It reduces arbitrary action, protects individual liberty, and promotes accountability in law enforcement.

For lawyers, this is an opportunity to ensure that clients are treated fairly and that procedural violations are challenged. For citizens, it is a powerful right to avoid unjust arrests and demand transparency.

The success of Section 35 will depend not just on its words, but on how effectively it is implemented on the ground.

Need Legal Help with BNSS or Unlawful Arrest?
📞 Advocate Anurag Gupta
📱 Mobile: 8240642015
💬 WhatsApp: 8931942803
📧 Email: gripshawlaw2005@gmail.com

 

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