Introduction
The Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS), which has replaced the Code of Criminal Procedure, 1973 (CrPC), reorganises several procedural safeguards in criminal law. One of its most crucial provisions is Section 35(3), the modern equivalent of Section 41A of the CrPC. It represents India’s continuing effort to strike a balance between effective policing and individual liberty. In this article I discuss about the procedure of arrest, powers of police and safegurads for the accused with practical guide on how to legally deal with such notice of appearance under aforesaid section.
The Law and Its Purpose
Section 35(3) of BNSS provides that when arrest is not required under Section 35(1) or (2), the police officer shall issue a notice of appearance to the person concerned whi may be a named accused in the FIR or may not be. The person must appear before the officer at the time and place specified in the notice. If the person complies, he shall not be arrested unless the officer records reasons in writing.
In essence, this section ensures that arrest is not used as the first or default step in every investigation of FOR. It operationalises the principle that liberty is the rule, and arrest the exception. The idea first appeared in Section 41A CrPC after the 2008 amendment, and has now been retained, though refined, in the new criminal procedure code i.e. BNSS.
How Section 35(3) Differs from Section 41A CrPC
While the underlying concept remains the same, Section 35(3) BNSS introduces several procedural upgrades.
First, it integrates the notice procedure within the main section on arrest, instead of treating it as an independent provision. This makes it part of a single, coherent framework on the “procedure of arrest”.
Secondly, the BNSS explicitly allows electronic service of notice, reflecting the government’s larger digital justice initiative. A notice can now be issued through electronic means such as email, SMS or digital platforms notified by the State.
Thirdly, compliance and reasons for arrest will now be maintained in electronic form as part of the digital case diary system under the BNSS. This brings transparency, reduces tampering, and leaves a traceable record of police conduct.
In short, Section 35(3) modernises the 41A framework—preserving its spirit but enhancing its enforceability through digital means.
Judicial Background: Arnesh Kumar and Beyond
The jurisprudence behind Section 35(3) BNSS traces back to the Supreme Court’s decision in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273. In that case, the Court expressed concern over routine arrests, particularly in offences punishable up to seven years. It directed police officers to evaluate the necessity of arrest under Section 41(1)(b) CrPC, and if not required, to issue a 41A notice.
Subsequent rulings such as Satender Kumar Antil v. CBI (2021) and Siddharth v. State of U.P. (2021) reinforced that an accused who cooperates under such notice should not be arrested. These judicial guidelines are now effectively codified in Section 35 of the BNSS.
Why This Provision Matters
The significance of Section 35(3) lies in its protection of personal liberty. Arrest often carries stigma, loss of livelihood, and psychological trauma. The law recognises that custodial investigation is not necessary in every case. By making police justify arrest and mandating prior notice, the BNSS prevents arbitrary deprivation of liberty.
It also promotes efficient investigation. When cooperation can be secured through appearance, the police can focus on evidence rather than custody. This helps decongest prisons and aligns with the Supreme Court’s long-standing emphasis on the principle of “bail, not jail”.
Safeguards for the Accused
Section 35(3) offers clear procedural protection. Once the notice is received, the accused has the right to be treated as not arrested. Compliance with the notice must prevent the police from taking him into custody unless written reasons are recorded. The BNSS’s digital integration adds another layer of safety—electronic issuance and compliance leave documentary proof of cooperation.
In case of arrest despite cooperation, the accused can challenge the arrest as illegal for violating the mandatory procedure under Section 35(3). Courts have repeatedly treated such arrests as contrary to Article 21 of the Constitution.
Steps to Take Upon Receiving a Notice
If a person receives a notice under Section 41A CrPC or its successor Section 35(3) BNSS, he should immediately acknowledge receipt and appear before the concerned officer at the specified date and time. He should carry identity proof and, if possible, be accompanied by counsel.
Non-appearance without valid reason may justify arrest. However, appearance and cooperation create strong protection against any coercive action. If there is fear of misuse or false implication, the person may approach the court for anticipatory bail, relying on Arnesh Kumar principles.
Anticipatory Bail and High Court Intervention
The issuance of a Section 35(3) notice itself shows that arrest is not presently required. This improves the chances of obtaining anticipatory bail if there is apprehension of misuse. Conversely, if the accused fully cooperates, anticipatory bail may even be unnecessary.
When notices are issued repeatedly or with mala fide intent, the High Courts—under their inherent powers (Section 482 CrPC / Section 532 BNSS)—have granted relief. Courts generally do not quash a lawful notice, but they do restrain police from taking coercive steps, especially when the accused has already joined the investigation.
Case Law on Quashing of Notice
High Courts across India have elaborated the contours of this power.
In Arun Kumar v. State of Telangana (2021), repeated 41A notices after compliance were quashed as harassment.
In Sudhir Bhosle v. State of Maharashtra (2022), a notice issued without FIR was struck down as void.
In Deepak Gaba v. State of Haryana (2023), the court held that a single valid notice is a statutory duty and not coercive, but repeated notices may be interfered with.
These precedents will continue to apply under Section 35(3) of the BNSS.
In Twitter India Communications Pvt. Ltd. v. State of Uttar Pradesh (2021), the Karnataka High Court quashed a notice issued by the Ghaziabad Police under Section 41A of the CrPC to Twitter India’s then Managing Director, holding that it was a misuse of power and amounted to harassment. The Court found that there was no material linking the petitioner personally to the alleged offence, nor any evidence showing that he controlled or managed the content posted on the Twitter platform. Since he was not named as an accused in the FIR, the issuance of a notice threatening coercive action was held to be without jurisdiction and procedurally improper. The Court ruled that, at best, he could be examined as a witness through video conferencing, reaffirming that Section 41A notices must be based on credible material and cannot be used to compel attendance or create pressure on individuals unconnected with the alleged offence.
Checklist: What to Do When You Receive a Section 35(3) BNSS Notice
Step 1 — Verify the Notice
☐ Check that the notice includes:
• FIR number and date
• Sections of law invoked
• Your full name and address
• Date, time & place of appearance
• Name, rank & signature of the issuing officer
☐ If served electronically, confirm sender’s authenticity (official email / SMS).
☐ If notice has no FIR, is unsigned, or incomplete → consult your lawyer about challenging it.
Step 2 — Understand Its Meaning
☐ It is not an arrest warrant—it only requires appearance and cooperation.
☐ It means arrest is not necessary at this stage.
☐ If you comply, police cannot arrest you unless they record fresh written reasons.
Step 3 — Appear Before the Officer
☐ Reach at the time and place stated.
☐ Carry:
• Copy of the notice
• Valid ID (Aadhaar / PAN etc.)
• A lawyer, if possible
☐ Be polite and cooperative.
☐ Ask the officer to note your appearance and give an acknowledgment.
Step 4 — Submit Written Cooperation
☐ Prepare a short note:
> “I have received the notice under Section 35(3) BNSS and am appearing voluntarily to cooperate with the investigation.”
☐ Get the investigating officer’s signature / seal on a copy for your records.
Step 5 — Preserve All Proof of Complianc
☐ Keep:
• Original or screenshot of notice
• Copy of acknowledgment of appearance
• Screenshots of any email/SMS/WhatsApp communication
☐ Maintain a dated record of each appearance.
Step 6 — Seek Anticipatory Bail if Threatene
☐ If the officer hints at arrest or harassment, move anticipatory bail under Section 480 BNSS (old 438 CrPC).
☐ Cite Arnesh Kumar v. State of Bihar (2014) and Siddharth v. State of U.P. (2021).
☐ Show that you have complied with the notice—this strengthens your plea.
Step 7 — Approach the High Court if Misused
☐ File under Section 532 BNSS / Article 226 petitoin if:
• Notice issued without FIR, or
• Repeated notices despite cooperation, or
• Mala fide / harassing conduct.
☐ High Court may:
• Quash defective or mala fide notices, or
• Direct “no coercive action” while you cooperate.
Step 8 — Monitor Police Compliance
☐ Police must record written reasons if they later decide to arrest.
☐ If arrested without such reasons → immediately inform your lawyer.
☐ Such arrest is illegal; seek immediate bail or contempt relief citing Arnesh Kumar.
Step 9 — Know Your Rights During Questioning
☐ Right to silence / no self-incrimination (Art. 20(3) Constitution).
☐ Right to have counsel visible during questioning (DK Basu v. State of W.B., 1997).
☐ Never sign blank papers or confessional statements.
Step 10 — After Complianc
☐ Obtain written confirmation that you have joined investigation.
☐ Keep proof for future hearings.
☐ If more notices come without reason → collect them as evidence of harassment and move for quashing.
Golden Rule
Comply once. Cooperate fully. Document everything.
No arrest can lawfully occur without fresh, written, recorded reasons after compliance with Section 35(3) BNSS.
Conclusion
In conclusion, Section 35(3) of the Bharatiya Nagrik Suraksha Sanhita, 2023 embodies a critical procedural safeguard against arbitrary arrest, continuing the legacy of Section 41A CrPC while modernising it for the digital era. The notice mechanism ensures that the State’s power to investigate remains intact but is exercised with restraint and transparency. For any person served with such a notice, compliance and cooperation are the surest shields of liberty—appearing before the investigating officer, maintaining documentary proof of cooperation, and seeking anticipatory or judicial protection if misused. The provision reflects the constitutional balance between individual freedom and effective investigation, affirming that arrest should never precede necessity and that liberty remains the cornerstone of due process in a democratic society.