Section 35 of BNSS

Source: Karnataka High Court

Why in News? 

A single judge bench of Justice M Nagaprasanna of the Karnataka High Court, in the case of Mr. Yugadev R. v. State of Karnataka & Others (2026), held that service of a pre-arrest notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) through electronic means — including WhatsApp or email — is invalid in law. The court further held that where an accused deliberately evades physical service of such notice for an extended period, this constitutes non-cooperative behaviour justifying arrest.

What was the Background of Mr. Yugadev R. v. State of Karnataka (2026) Case? 

• The petitioner Yugadev and his wife, posing as Yoga teachers, were allegedly running a company called Jai Bhairavi Devi (JBD) and collecting investments from members of the public. They are accused of duping investors of nearly Rs. 98 lakhs. 
• An FIR was registered against the petitioner at Adugodi Police Station on December 9, 2025 for offences under Section 66(c) of the IT Act, 2000, Section 66(d) of the IT Act, 2000 and Section 318(4) of the BNS.  
• The police sought to serve a pre-arrest notice under Section 35(3) BNSS upon the petitioner, but he remained untraceable for over 40 days, evading physical service. 
• On January 17, 2026, when the police finally confronted the petitioner, he refused to accept the physical notice. He was subsequently arrested, and his arrest was approved by the jurisdictional magistrate. 
• The petitioner challenged the magistrate's order approving his arrest before the Karnataka High Court, contending, among other things, that the police could have simply served the notice electronically if the intention was only to inform him of the proceedings.

What were the Court's Observations? 

• The court held that Section 35(3) BNSS does not empower the police to communicate the pre-arrest notice or a copy of the FIR through electronic means such as WhatsApp or email. Physical service of the notice at the pre-arrest stage is mandatory as intended by the legislature. 
• The bench relied on the Supreme Court's decision in Satender Kumar Antil v. CBI (2026) where the apex court held that electronic communication of the notice under Section 35 BNSS is invalid owing to a "conscious omission" in the statute — the legislature deliberately excluded Section 35 notices from the procedures permissible through electronic communication. 
• The court reiterated the apex court's observation that it cannot introduce a procedure into Section 35 which is not intended by the legislature, and that the restrictions imposed on the use of electronic communication — confined to only certain procedures under the BNSS — preclude its use for service of pre-arrest notices. 
• On the question of arrest, the court held that the petitioner's deliberate evasion of physical service of the Section 35(3) notice for nearly 40 days amounted to non-cooperative behaviour. This was a sufficient circumstance to justify taking him into custody. 
• The court further held that since the failure to effect physical service was attributable entirely to the accused himself — who had been absconding and ultimately refused to accept the notice when confronted — no constitutional right of the petitioner was violated by the police action. 
• Accordingly, the court rejected the petition challenging the arrest and upheld the magistrate's order approving the same.

What is Section 35 BNSS? 

About: 

• Section 35 of the BNSS 2023 is a provision that empowers police officers to arrest any person without obtaining a warrant from a Magistrate in specific circumstances involving cognizable offences. 

Grounds for Arrest without Warrant: 

Immediate Arrest Situations: 

• When a person commits a cognizable offence in the presence of a police officer. 
• When credible information is received that a person has committed a cognizable offence punishable with imprisonment for more than seven years, with or without fine, or with death sentence. 
• When a person has been proclaimed as an offender under BNSS or by State Government order. 
• When stolen property is found in someone's possession and they are reasonably suspected of committing an offence related to it. 
• When a person obstructs a police officer in execution of duty or has escaped or attempts to escape from lawful custody. 
• When a person is reasonably suspected of being a deserter from the Armed Forces. 
• When a person is involved in an act committed outside India which would be punishable as an offence if committed in India. 
• When a released convict breaches, rules are made under Section 394(5). 
• When a requisition for arrest is received from another police officer. 

Conditional Arrest for Offences Up to Seven Years:  

• For cognizable offences punishable with imprisonment for less than seven years or extending up to seven years, arrest is permitted only if specific conditions are satisfied: 
  • The police officer has reason to believe the person committed the offence based on reasonable complaint, credible information, or reasonable suspicion. 
  • The police officer is satisfied that arrest is necessary for preventing further offences, proper investigation, preventing evidence tampering, preventing inducement or threats to witnesses, or ensuring court appearance. 
  • The police officer must record reasons in writing while making the arrest. 
• Notice Procedure (Alternative to Arrest):  
  • When arrest is not required under the above provisions, the police officer must issue a notice directing the person to appear before him or at a specified place.  
  • The person has a duty to comply with the notice terms, and as long as they comply, they cannot be arrested unless the police officer records specific reasons for arrest necessity. 
• Consequences and Safeguards:  
  • If a person fails to comply with the notice or is unwilling to identify themselves, the police officer may arrest them for the offence mentioned in the notice, subject to any orders passed by a competent court.  
  • For offences punishable with imprisonment of less than three years, prior permission from an officer not below the rank of Deputy Superintendent of Police is required before arresting infirm persons or those above sixty years of age. 
  • The provision includes a mandatory safeguard requiring police officers to record reasons in writing when arrest is not made, ensuring accountability and preventing arbitrary arrests while balancing law enforcement needs with protection of individual liberty.