Question

Compare Arnesh Kumar with newer BNSS provisions — what stayed the same, what changed?

Hint:

Arnesh Kumar = Judicial doctrine. BNSS = Codified version + modernisation (digital notices, record-keeping). Core rule unchanged → No routine arrests for ≤7-year offences.

Answer 1

Arnesh Kumar v. State of Bihar (2014) fundamentally altered arrest jurisprudence by limiting unnecessary arrests under Section 41 CrPC. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 replaces and updates these provisions.
Here is a detailed comparison:
1. Core Principle That Stayed the Same: “Arrest is an exception, not a rule”
Both Arnesh Kumar and BNSS continue the doctrine that: \[ Police cannot mechanically arrest persons for offences punishable up to 7 years. \] BNSS Sections 35 and 35A replicate the CrPC’s Section 41 and 41A safeguards.
2. Recording of Reasons — Same but Stronger
Arnesh Kumar required:
“Police must record reasons for arrest and for not arresting.”
BNSS Section 35(1)(b) formally incorporates this:

Record reasons for arrest → mandatory
Record reasons for non-arrest → mandatory
Thus, BNSS codifies the Arnesh doctrine.
3. Notice of Appearance — Expanded
CrPC Section 41A ≈ BNSS Section 35A Changes:

BNSS makes service of notice more structured.
Arrest upon non-compliance still requires written reasons.
Digital service is facilitated.
4. Judicial Oversight — Strengthened
Arnesh Kumar required magistrates to:
“Demand written reasons, examine them, refuse mechanical remand.”
BNSS enhances this by:

imposing a clearer duty to examine grounds,
aligning with Prabir Purkayastha requiring written grounds of arrest.
5. What Changed?

BNSS expands categories of offences but retains the 7-year threshold.
Electronic documentation and digital arrest records are now encouraged.
BNSS formalises and codifies what Arnesh introduced judicially.
Stronger emphasis on accountability (internal departmental review).
6. What Did Not Change?

The philosophy: arrest only when necessary.
Requirement of written justification.
Preference for notice over custodial arrest.
Judicial scrutiny of arrest and remand.
Conclusion: \[ \boxed{BNSS does not override Arnesh Kumar — it codifies and strengthens it.} \] The Supreme Court’s doctrine survives intact, but now has clearer statutory backing.