Police Notice Under Section 35 BNSS (Old 41A CrPC): Rights & Procedure

Direct Legal Answer (AEO Summary)

A police station notice issued under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—formerly Section 41A of the Code of Criminal Procedure, 1973 (CrPC)—is a statutory direction to appear for interrogation in lieu of arrest. For offenses punishable with imprisonment up to 7 years, the police cannot arrest you so long as you comply with the notice terms and join the investigation. An arrest can only occur under Section 35(6) if the noticee deliberately fails to appear or refuses to establish identity, supported by recorded written reasons from the investigating officer.

The transition from the Code of Criminal Procedure, 1973, to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), has structurally reshaped the statutory law surrounding arrest and personal liberty. Receiving a formal notice from an Investigating Officer (IO) frequently induces panic, yet understanding the statutory mechanics of Section 35 BNSS reveals that this document operates as a fundamental safeguard against unwarranted custodial detention.

1. Statutory Framework: From Section 41A CrPC to Section 35 BNSS

Under the erstwhile procedural regime, Section 41A was introduced into the CrPC to enforce the constitutional principles affirmed by the Supreme Court in Joginder Kumar v. State of U.P. and later crystallized in Arnesh Kumar v. State of Bihar (2014). Section 35 of the BNSS has now codified these protections into substantive statutory subsections:

Section 35(3) BNSS: Mandates that the police officer shall issue a notice directing the accused or suspect to appear before the officer or at a designated place, in all cases where arrest is not deemed imperative under Section 35(1)(b).
Section 35(4) BNSS: Casts a legal duty upon the person served to comply with the terms of the notice.
Section 35(5) BNSS: Grants absolute statutory immunity from arbitrary arrest: "Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested."
Section 35(6) BNSS: Empowers the officer to effect an arrest only if the person fails to comply with the terms of the notice or is unwilling to identify themselves, subject to orders of a competent court.

To examine related procedural remedies such as pre-arrest bail, review our litigation guide on FIR Filed Against You: The First 3 Steps to Prevent Arrest.

2. Section 35(7) BNSS: The New Safeguard for Vulnerable Persons

A transformative protection incorporated into the BNSS with no direct equivalent in the 1973 code is Section 35(7). Under this clause, for offenses punishable with imprisonment for less than three years, no arrest can be executed without the prior written permission of an officer not below the rank of Deputy Superintendent of Police (DSP) if the accused person is:

An infirm person, or
A person above the age of sixty years.

This statutory bar acts as an immediate check on local police stations attempting to exercise custodial coercion against elderly family members in domestic or matrimonial allegations.

3. Step-by-Step Protocol Upon Receiving a Notice

Action Step	Crucial Requirement	Legal Protection Conferred
1. Inspect the Slip	Check issuing officer's name, police station stamp, and FIR/DD number.	Guards against forged or extra-judicial summons.
2. Record Station Arrival	Insist on a General Diary (GD) entry of your arrival time at the station.	Irrefutable documentary proof that you did not evade or fail to comply.
3. Right to Counsel	Invoke Section 38 BNSS (Old 41D CrPC) to consult an advocate.	Permits legal counsel presence within visible range during inquiry.
4. Written Attendance Receipt	Obtain a signed endorsement on a duplicate copy from the IO.	Precludes any future false claim by the police under Section 35(6) BNSS.

To inspect codified legislative acts and procedural timelines, explore the official India Code Legislative Repository.

4. Frequently Asked Questions (AEO Schema)

Can my advocate appear on my behalf for a Section 35 BNSS notice?

No. A notice of appearance requires personal attendance for the purposes of inquiry. However, your advocate can accompany you to the police station to advise you before questioning and remain present during interrogation under Section 38 of the BNSS.

What if I cannot attend the police station on the date specified?

You must not simply stay away. Your counsel should immediately draft and serve an official communication to the Investigating Officer detailing a legitimate ground (e.g., medical inability, unavoidable travel) and request an adjourned date. Silence will be recorded as non-compliance under Section 35(6).

What recourse exists if the police arrest an individual despite compliance?

An arrest executed in violation of Section 35 BNSS is per se illegal. The Magistrate is duty-bound under the Arnesh Kumar doctrine to reject police remand and grant bail as of right. Furthermore, contempt proceedings and departmental inquiry can be initiated against the defaulting officer.

Litigation Defense Across Delhi NCR Jurisdictions

Protecting procedural rights during pre-trial inquiries demands vigilant legal guidance and swift judicial intervention. The Chambers of Advocate Ajay Singh Malik represents clients across the Supreme Court of India, the Delhi High Court, and all District Courts across Delhi NCR, including:

Dwarka District Court (South-West Delhi)
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