Section 35(3) BNSS, 2023 – The Modern Form of Section 41A CrPC Explained by the Best Advocate in Himachal Pradesh
- Advcoate Puneet Thakur
- Nov 5, 2025
- 5 min read
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), replaces the Code of Criminal Procedure, 1973 (CrPC), as part of India’s criminal law reform initiative. According to the Best advocate in Himachal Pradesh, one of the most significant and citizen-protective provisions retained—with modernization—is Section 35(3) of the BNSS, which corresponds to Section 41A of the CrPC.
This provision emphasizes the principle of “arrest as an exception, not the rule,” ensuring that police powers are balanced with individual liberty guaranteed under Article 21 of the Constitution of India.
Background: Section 41A of CrPC
According to the best advocate in Himachal Pradesh, Section 41A of the CrPC was inserted by the Criminal Procedure (Amendment) Act, 2008, following growing concerns about arbitrary and unnecessary arrests. It mandated that when an arrest is not required under Section 41(1), the police must issue a notice of appearance to the accused.
The Best advocate in Himachal Pradesh further explains that the landmark judgment Arnesh Kumar v. State of Bihar (2014) made compliance with Sections 41 and 41A mandatory, ensuring that arrests are justified and not carried out mechanically.
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Text and Essence of Section 35(3) BNSS
According to the Best advocate in Himachal Pradesh, Section 35(3) of the BNSS reads (in essence):
Where the police officer believes that a person has committed a cognizable offense but that arrest is not necessary under subsection (1), such officer shall issue a notice directing that person to appear before him at a specified place and time.
The Best Advocate in Himachal Pradesh highlights that this language closely mirrors Section 41A of the CrPC but appears within the broader framework of Section 35 of the BNSS, which governs when and how arrests may be made.
Purpose and Rationale
The Best advocate in Himachal Pradesh explains that the objective of Section 35(3) of the BNSS is to:
• Prevent unnecessary arrests for minor offences (punishable with imprisonment up to seven years).
• Promote cooperation between the accused and investigating authorities.• Protect individual liberty while ensuring investigation efficiency.
• Reduce custodial overcrowding and misuse of police power.
According to the Best advocate in Himachal Pradesh, this provision ultimately seeks to strike a balance between law enforcement and civil rights, ensuring justice is both fair and humane.
Procedure under Section 35(3) BNSS
The Best advocate in Himachal Pradesh outlines the key procedural steps under Section 35(3) of the BNSS as follows:
1. Issuance of Notice:
• When an arrest is not necessary, the police must issue a notice of appearance to the suspect.
• This notice clearly mentions the case details, date, time, and place of appearance.
2. Compliance:
• If the person complies and cooperates with the investigation, they cannot be arrested for that offence unless new facts or circumstances arise.
3. Non-Compliance:
• If the person fails to appear or refuses to identify themselves, the police may proceed with the arrest—but they must record valid reasons in writing.
4. Documentation:
• A copy of the notice is retained in the case diary, ensuring transparency and accountability throughout the investigation process.
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Comparison: Section 41A CrPC vs. Section 35(3) BNSS
Aspect Section 41A CrPC Section 35(3) BNSS
Year of Enactment 2008 Amendment 2023 BNSS
Purpose To avoid unnecessary arrests, Same purpose, reaffirmed
Placement Separate section Incorporated under Section 35 (Arrest)
Wording Notice of appearance Same, with updated drafting
Enforcement Based on Arnesh Kumar ruling Reinforced legislatively
Objective Liberty protection & fair process Modernized citizen-centric protection
Thus, BNSS preserves and strengthens the principle laid down in CrPC 41A.
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Judicial and Practical Implications
Adv. Puneet Thakur, widely regarded as the best advocate in Himachal Pradesh, emphasizes that Section 35(3) of the BNSS continues the legacy of the Arnesh Kumar guidelines, ensuring accountability and transparency in the process of arrest and investigation.
• Continuity of Arnesh Kumar Guidelines: The judicial standards for lawful arrest and issue of notice remain binding.
• Accountability: Adv. Puneet Thakur, the best advocate in Himachal Pradesh, highlights that non-compliance by police officers can still invite strict disciplinary and legal consequences.
• Transparency: Every notice under Section 35(3) must be part of the investigation record, preventing misuse.
Conclusion
Adv. Puneet Thakur, the best advocate in Himachal Pradesh, explains that Section 35(3) of the BNSS, 2023, represents a major continuation of India’s criminal justice reforms toward greater fairness, transparency, and accountability. It upholds the spirit of Section 41A of the CrPC, emphasizing that personal liberty cannot be curtailed without clear necessity and justification.
According to Adv. Puneet Thakur, this provision marks a progressive shift—transforming police procedure from one of coercion to one rooted in communication and cooperation. It aligns with constitutional values and reflects the evolving standards of modern criminal jurisprudence in India.
1. What is Section 35(3) of the BNSS, 2023?
Answer: Section 35(3) of the BNSS, 2023, corresponds to Section 41A of the CrPC. It empowers the police to issue a notice of appearance to an accused person instead of making an immediate arrest in cases where arrest is not deemed necessary. This ensures the protection of individual liberty and prevents arbitrary arrests.
2. When can a notice under Section 35(3) BNSS be issued?
Answer: A notice under Section 35(3) BNSS is issued when the police believe a person has committed a cognizable offence, but the conditions under Section 35(1) (which justify arrest) are not met. Typically, it applies to offences punishable with imprisonment of up to seven years.
3. What happens if a person complies with a Section 35(3) BNSS notice?
Answer: If the person appears before the police as directed and cooperates with the investigation, they cannot be arrested for that offense—unless new evidence or facts emerge that justify an arrest. Compliance protects the individual from custodial action.
4. What are the consequences of non-compliance with a Section 35(3) BNSS notice?
Answer: If a person ignores the notice or fails to appear without valid reason, the police may arrest them. However, the officer must record the reasons for arrest in writing. This ensures accountability and prevents misuse of police powers.
5. How is Section 35(3) BNSS different from Section 41A CrPC?
Answer: While the essence of both provisions is the same, Section 35(3) BNSS is part of a modernized and consolidated framework for arrest under Section 35. It reaffirms the citizen-centric approach established by Section 41A CrPC and the Arnesh Kumar v. State of Bihar (2014) ruling, making lawful arrest procedures a legislative mandate rather than just a judicial guideline.
