When the police send you a notice — and when you don't have to appear

If the offence carries a sentence of up to seven years and you have been issued a Section 35 BNSS notice, the police cannot arrest you so long as you comply. The Supreme Court's Arnesh Kumar ruling makes that compliance mandatory on the police, not optional.

A constable rings the doorbell. He hands over a one-page printed slip with the police station stamp, asks for a signature on the duplicate, and leaves. The slip says you are required to appear at the station on a particular date at a particular time. Below the signature line is the printed line: “under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023.”

The first reaction is usually panic. The second, often, is a phone call to a relative who tells you to disappear for a few days. Both reactions are wrong. The notice is not a summons to be arrested. It is the opposite — a written record that the police have decided not to arrest you, and it is the document that keeps the handcuffs off your wrists if you behave correctly.

The law in plain English

Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [Section 41A of the CrPC, 1973] applies to a class of cognizable offences — broadly, those punishable with imprisonment up to seven years. Cruelty by a husband under Section 85 BNS [Section 498A IPC], cheating under most of its variants, criminal breach of trust below the higher thresholds, hurt offences, and a great many regulatory and economic offences fall in this bracket. For these offences, the police do not have an automatic right to arrest. They first have to decide, on recorded reasons, whether arrest is actually necessary — to stop the person fleeing, to prevent evidence being destroyed, to stop the offence being repeated, and so on.

If the police conclude that arrest is not necessary, Section 35 requires them to issue a notice in writing directing the person to appear at the station or another specified place. The person who receives the notice has a duty to comply. So long as they comply, the police cannot arrest them in connection with the offence — unless the officer records specific reasons for changing that decision.

The Supreme Court hardened this provision into a binding rule in Arnesh Kumar v. State of Bihar (2014). The case arose from rampant arrests in dowry harassment matters under what was then Section 498A IPC. The Court directed every police station in the country to issue a Section 41A notice instead of arresting in offences with a seven-year ceiling, unless the conditions in Section 41 are satisfied and reasons recorded. Officers who arrested in violation faced departmental action; magistrates who authorised remand without scrutinising those reasons faced contempt of court. The Arnesh Kumar directions read in to Section 41A then — and the renumbered Section 35 of the BNSS now — turn what looks like procedural detail into a hard substantive protection.

Step-by-step procedure

The notice is meant to be straightforward. Read the slip carefully before you do anything else.

Step 1 — Confirm the document is genuine. A real Section 35 notice carries the police station stamp, the name and designation of the issuing officer, an FIR or DD number reference, and the section of the offence alleged. It is dated. It tells you the day, the time, and the place at which you must appear. If any of these is missing, telephone the police station on a number you found independently (not one printed on the slip) and confirm before you act. Fake notices exist and are used in extortion.

Step 2 — Acknowledge receipt in writing. Sign the duplicate the constable presents. If you are handed only the original, ask for a duplicate and sign it on the spot. Take a photograph of the notice the moment the constable leaves. Save it to your phone’s cloud backup. The notice is now your principal proof, against any later arrest, that you were never refusing to cooperate.

Step 3 — Engage a lawyer the same day. A criminal lawyer’s job here is small but useful: read the offence section, check whether it is genuinely a seven-years-and-under offence, look at the FIR if a copy is available, and brief you on what questions to expect. A first consultation is cheap relative to what an arrest costs. The lawyer can also accompany you to the police station; you have a right to consult an advocate during interrogation under Section 38 of the BNSS [Section 41D CrPC].

Step 4 — Appear on the date stated. Do not be late. Do not send someone in your place — the notice is personal. Carry the original notice, a photo identity (Aadhaar, PAN, passport), and one trusted family member. The family member sits in the waiting area; the law does not give them a right to be inside the interrogation room.

Step 5 — At the station, identify yourself to the IO. The investigating officer named on the notice is the person you must report to. Ask the duty officer to record your arrival in the station diary. This stamps the time of your appearance into the official record — useful if there is any later dispute about whether you complied.

Step 6 — Answer questions; do not invent details. The IO will ask questions related to the offence. You are required to answer truthfully. You are not required to confess. You are not required to admit facts you do not know. Silence is permissible on incriminating answers; under Article 20(3) of the Constitution no person accused of an offence can be compelled to be a witness against himself. If you do not understand a question, say so. Do not sign any statement you have not read.

Step 7 — Keep a record of every appearance. Each time you go to the station in response to a continued investigation, take a brief acknowledgement from the IO that you appeared on that date and time. A line in your own handwriting in the IO’s register — dated, time-stamped, signed by both of you — is the cleanest record. If the IO refuses, send a follow-up letter the same day by Speed Post or email to the SHO confirming the appearance.

What to watch for

The notice is the protection. What people do at the station — or fail to do — turns that protection into a liability.

Skipping a single appearance. Section 35(4) BNSS lets the police arrest if a person, at any time, fails to comply with the notice or refuses to identify himself. One missed date converts a compliant person into a non-cooperator. If you genuinely cannot attend on the stated date — illness, family death, an unavoidable journey — write to the IO before the date and seek an alternative date. Send the letter by Speed Post and email; keep the receipts.

Treating the notice as a substitute for anticipatory bail. A Section 35 notice is protection against arrest by the IO in this investigation. It does not stop a different IO at a different police station from acting on a different FIR. If you have reason to think more FIRs may follow, or that the IO is unfriendly enough to flip on you, anticipatory bail under Section 482 BNSS [Section 438 CrPC] is the separate, judicially-supervised protection.

Going to the station alone for a long interrogation. Section 38 BNSS [Section 41D CrPC] gives you the right to consult an advocate during interrogation, though the advocate may not sit through every minute of it. If an interrogation is dragging into hours, ask for the advocate to be called in. If the IO insists you stay overnight, that is itself an arrest in substance, even if no formal arrest memo has been prepared — because the freedom to leave has been taken away. At that point the rules in D.K. Basu v. State of West Bengal kick in: arrest memo, intimation to a relative, medical examination, and so on.

Signing a blank or partly-filled statement. A surprising number of people sign whatever the IO puts in front of them out of relief that the interrogation is ending. Section 162 of the BNSS [Section 161 CrPC] statements are not signed by the maker in the first place — the IO records them in the case diary. If you are being asked to sign a statement, look carefully at what it says. A confession to a police officer is in any event inadmissible under Section 23 of the BSA [Section 25 of the Evidence Act], but a signed admission of facts can hurt you at trial through other routes.

Treating the notice as a finding of guilt. A Section 35 notice means the police think there is enough reason to investigate. It is not a charge sheet. It is not a conviction. It is not even an arrest. Behaving in your professional and family life as though it is one — quitting jobs, breaking off engagements, going into hiding — makes the situation harder to recover from when the investigation goes nowhere, which a great many notice-stage investigations do.

Believing oral assurances from the IO. Officers sometimes tell people that no further action is intended, or that the case will be closed, in order to keep them cooperative. None of that is on the record unless it is written down. Investigations get reassigned; officers get transferred; nothing the previous IO said survives. Treat the notice and the FIR copy as the real instruments; everything spoken is air.

If things go wrong

The first thing that can go wrong is arrest despite compliance. If the IO suddenly decides to arrest you while you are at the station in answer to a notice, Section 35(3) BNSS requires written reasons. Ask for the arrest memo. Ask for the grounds of arrest to be supplied in writing under Section 47 of the BNSS [Section 50 CrPC]. Send a message to your family and your lawyer. The reasons the officer records will be tested in the bail court.

If the police refuse to give a copy of the notice itself, send a written request to the SHO under Section 173(2) BNSS for the FIR and to the same officer for the Section 35 notice, both by Speed Post with acknowledgement. If they continue to refuse, the next step is the Superintendent of Police.

If you are arrested in a seven-year-or-under offence without the Section 35 procedure having been followed at all, the arrest is illegal under Arnesh Kumar. A bail application before the Magistrate, annexing the FIR and pointing to the absence of recorded reasons, is the immediate remedy. Magistrates are under an Arnesh Kumar duty to refuse remand if Section 35 was not complied with. If the Magistrate remands anyway, a bail application before the Sessions Court under Section 483 BNSS [Section 439 CrPC] or anticipatory bail under Section 482 BNSS [Section 438 CrPC] is the next step.

If the conduct of the police is itself oppressive — repeated late-night calls, threats, refusal to permit a lawyer — a written complaint to the Superintendent of Police, the State Human Rights Commission, and the National Human Rights Commission can be made in parallel. NHRC accepts complaints online at nhrc.nic.in. The Supreme Court’s decision in D.K. Basu v. State of West Bengal remains the foundation document for police-custody safeguards under Article 21 of the Constitution.

Resources

Helplines and portals.

• National Human Rights Commission: nhrc.nic.in (online complaint accepted)
• State Human Rights Commission: state-specific portal in your state
• NALSA legal aid helpline: 15100
• Emergency: 112

Statutory references. BNSS Section 35 (notice of appearance), Section 36 (procedure of arrest and duties of officer making arrest), Section 38 (right to meet an advocate during interrogation), Section 47 (grounds of arrest), Section 173 (FIR registration), Section 482 (anticipatory bail), Section 483 (regular bail by Sessions Court / High Court). Equivalent CrPC sections: 41A, 41B, 41D, 50, 154, 438, 439.

Leading judgments. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 — mandatory Section 41A notice in seven-year offences. Joginder Kumar v. State of U.P., (1994) 4 SCC 260 — arrest is not a must in every cognizable case. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 — arrest-memo, intimation and medical-examination safeguards.

Sample templates. Two PDF formats are linked at the foot of this guide. The first is an acknowledgement-and-reply to a Section 35 BNSS notice, recording your appearance and reserving your defences. The second is an application for anticipatory bail under Section 482 BNSS, for the situation where you reasonably apprehend that the notice will not, by itself, hold the police off.

Outcome

A Section 35 notice is not a summons to be arrested; it is the written record that the police have decided not to arrest you. Compliance — appearing on time, answering questions, keeping records — converts that decision into a protection. Non-compliance converts it into permission for the police to arrest. If the police arrest you despite compliance, the arrest is reviewable in court, and the bail court has been told by the Supreme Court to look hard at the recorded reasons.