Many people first learn of an FIR against them not through arrest but through a printed notice asking them to appear before the investigating officer. That document — a notice of appearance under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, the successor to Section 41A of the Code of Criminal Procedure, 1973 — is one of the most consequential pieces of paper in criminal practice. Handled well, it can keep a person out of custody for the life of the investigation. Ignored, it can become the very justification for arrest.
From Section 41A CrPC to Section 35 BNSS
The Bharatiya Nagarik Suraksha Sanhita, 2023, in force since 1 July 2024, folds the old Sections 41 and 41A CrPC into a single Section 35. The structure is familiar: sub-section (1) states when arrest without warrant is permissible, and for offences punishable up to seven years it demands recorded reasons tied to necessity; sub-section (3) requires a notice of appearance where arrest is not justified; sub-sections (4) to (6) deal with the duty to comply and the consequences of default; and sub-section (7) adds fresh protection for the infirm and for persons above sixty.
CrPC regime
Section 41(1)(b) checklist for offences up to 7 years; Section 41A notice where arrest unnecessary; safeguards largely judge-made through Arnesh Kumar and Satender Antil.
BNSS regime
One consolidated Section 35; the notice regime continues in sub-section (3); a new sub-section (7) requires DSP-level sanction before arrest of persons above 60 or infirm in sub-3-year offences.
Why the notice exists
In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 — a case arising from a Section 498A IPC arrest — the Supreme Court held that arrest in the up-to-seven-year band must be the exception, justified on a recorded checklist, and that magistrates authorising detention must verify that the checklist was honestly applied. Satender Antil v. CBI (2022) 10 SCC 51 institutionalised the discipline, and the Supreme Court has since clarified in the continuing Satender Antil proceedings that the notice must be served in the prescribed manner — service through instant messaging applications is not a substitute. Police officers who arrest in breach of the regime risk departmental action and contempt; detentions authorised in breach expose the remand itself to challenge.
Responding to a notice: a practical sequence
The notice and anticipatory bail
The two protections run on parallel tracks. A Section 35(3) notice reflects the officer’s present view that arrest is unnecessary; it is not an undertaking for the future. Courts hearing anticipatory bail pleas routinely weigh whether the applicant honoured such notices — compliance strengthens the plea, evasion undermines it. Conversely, the issuance of a notice does not bar anticipatory bail: where the apprehension of arrest is reasonable, the two can sensibly coexist, with the bail application recording the cooperation already extended.
- Never ignore the notice — Section 35(6) makes default itself a ground of arrest.
- Demand recorded reasons — any arrest in the up-to-seven-year band without them is open to challenge at remand.
- Preserve every acknowledgment — cooperation must be provable, not merely asserted.
- Senior citizens should invoke Section 35(7) — the DSP-permission requirement is a statutory safeguard worth citing in representations and bail pleadings alike.
This article is for general information only and is not legal advice. The appropriate response to a police notice depends on the FIR, the offences alleged and the stage of investigation in each case.
Frequently Asked Questions
When must police issue a notice instead of arresting?
Where a cognizable offence is punishable with imprisonment up to seven years, Section 35(1) BNSS permits arrest without warrant only if the officer records reasons showing a genuine necessity — to prevent further offences, for proper investigation, to protect evidence or witnesses, or to secure presence in court. Where those conditions are not met, Section 35(3) requires a notice of appearance rather than arrest, continuing the regime of Section 41A CrPC as enforced in Arnesh Kumar v. State of Bihar (2014).
Does appearing on the notice mean I cannot be arrested?
Section 35(5) BNSS provides that a person who complies with the notice and continues to comply shall not be arrested for the offence concerned unless the officer records reasons why arrest is nonetheless necessary. Compliance is therefore a genuine shield, though not an absolute one — which is why responses to the notice and conduct during appearances should be carefully managed.
What happens if the notice is ignored?
Under Section 35(6) BNSS, failure to comply with the terms of the notice entitles the police to arrest, subject to any orders of a competent court. Non-appearance also colours any later anticipatory bail plea, since courts ask whether the applicant cooperated with the investigation. A notice should never simply be ignored; appearance, or a prompt written request rescheduling it, is the sound course.
Is there special protection for senior citizens and the infirm?
Yes. Section 35(7) BNSS — a provision new to the 2023 code — requires the prior permission of an officer not below the rank of Deputy Superintendent of Police before arrest for an offence punishable with less than three years' imprisonment where the person is infirm or above sixty years of age. This adds a layer of supervision that Section 41 CrPC did not expressly contain.