Is a Police Notice Under Section 35 BNSS Mandatory Before Arrest?
Section 35 BNSS notice before arrest is the question thousands of families in Delhi NCR ask the moment a police officer calls and says, “Thane aa jaiye, bas kuch poochhna hai.”
Is that call a lawful notice or a polite trap? Can the police simply pick you up instead? Does a piece of paper decide whether you sleep at home tonight?
The short answer: For offences punishable with up to seven years’ imprisonment, a notice under Section 35(3) BNSS is now the rule and arrest is the exception. The Supreme Court said so in January 2026. But the notice is not a magic shield that works in every situation. This guide explains exactly where it protects you, where it does not, and what to do if you receive one.
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This blog is for general information only and is not legal advice.
BNS or BNSS? A Quick Clarification
Since 1 July 2024, three new laws replaced the old criminal codes:
- Bharatiya Nyaya Sanhita (BNS) replaced the Indian Penal Code. It defines what is a crime.
- Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the Code of Criminal Procedure. It decides how police arrest, investigate and produce you before a court.
- Bharatiya Sakshya Adhiniyam (BSA) replaced the Evidence Act.
Arrest and notice are procedure, so they sit in BNSS Section 35. The old Section 41A CrPC (notice of appearance) has been folded into Section 35 as sub-sections (3) to (6).
What Section 35 BNSS Actually Says
Section 35 has seven sub-sections. In plain language:
Sub-section (1): when police may arrest without a warrant. An officer may arrest someone who commits a cognizable offence in the officer’s presence. For offences punishable up to seven years, the officer may arrest only if two things exist: a reason to believe, based on a complaint, information or suspicion, that the person committed the offence, and satisfaction that arrest is necessary. The recognised necessity grounds are:
- to prevent a further offence,
- for proper investigation,
- to stop evidence being destroyed or tampered with,
- to stop the person from threatening or inducing witnesses, or
- because the person’s presence in court cannot otherwise be ensured.
The officer must record these reasons in writing. Even when the officer decides not to arrest, the proviso requires the reasons for that to be recorded too.
For offences punishable with more than seven years (or death), arrest is allowed where there is credible information and reason to believe the person committed it. Further clauses cover proclaimed offenders, stolen property, escape from custody and similar cases.
Sub-section (2): For non-cognizable offences, police cannot arrest without a warrant or Magistrate’s order.
Sub-section (3): the notice. Where arrest is not required under sub-section (1), the police officer shall issue a notice directing the person to appear. The word is “shall”, not “may”.
Sub-section (4): The person must comply with the notice.
Sub-section (5): If the person complies and keeps complying, they cannot be arrested for that offence, unless the officer records reasons for believing arrest is needed.
Sub-section (6): If the person fails to comply or refuses to identify themselves, the officer may arrest, subject to any court orders.
Sub-section (7): new in BNSS. For an offence punishable with less than three years, if the person is infirm or above 60, arrest needs prior permission of an officer not below the rank of Deputy Superintendent of Police.
What Changed From Section 41A CrPC?
Very little in the notice mechanism itself. Sub-sections (3) to (6) of Section 35 are essentially the old Section 41A(1) to (4) with updated cross-references. The real changes:
| Feature | CrPC (old) | BNSS (new) |
| Arrest powers | Section 41 | Section 35(1)–(2) |
| Notice of appearance | Section 41A (separate section) | Section 35(3)–(6) |
| Senior citizens / infirm persons | No special rule | Section 35(7): DSP permission for offences under 3 years |
| Format | Separate heading | Single consolidated section; Form No. 1, Second Schedule |
One transitional point: where an investigation was already pending immediately before 1 July 2024, Section 531(2)(a) BNSS says it continues under the old Code. In such cases Sections 41 and 41A CrPC still apply, and sub-section (7) does not.
How We Got Here: The Supreme Court’s Long March Against Routine Arrests
The notice rule did not appear overnight. It is the end of a thirty-year judicial effort to stop arrest from becoming routine.
Joginder Kumar v. State of U.P. (1994). The Court said the power to arrest and the justification for using it are two different things. No arrest should be made merely because it is lawful to make it.
Arnesh Kumar v. State of Bihar (2014). This was the turning point. The case involved a dowry-harassment complaint (then Section 498-A IPC, now Section 85 BNS), but the Court extended its directions to every offence punishable up to seven years. Police must apply the necessity test and send the Magistrate a checklist with reasons. The Magistrate may authorise detention only after reading it and recording satisfaction. Notice must be served within two weeks of the case being registered, extendable by the Superintendent of Police for written reasons. Non-compliance exposes officers to departmental action and contempt.
Satender Kumar Antil v. CBI (2022). The Court directed courts to check compliance with Sections 41 and 41A and said non-compliance would entitle the accused to bail. It also asked every State and Union Territory to issue standing orders on the notice procedure, taking note of the Delhi High Court’s 2018 directions in Amandeep Singh Johar.
Satender Kumar Antil v. CBI (15 January 2026). The Court applied the same thinking to the BNSS and gave the clearest statement yet.
The 2026 Supreme Court Ruling in Plain English
In Satender Kumar Antil v. CBI (decided 15 January 2026; reported as 2026 INSC 115 and (2026) 7 SCC 311), a two-judge bench laid down these principles:
- Notice is the rule. For offences punishable up to seven years, a Section 35(3) notice is to be issued as a matter of course. Arrest under Section 35(6) read with Section 35(1)(b) is a clear exception.
- Arrest is discretionary. Section 35(1) uses “may”. The power to arrest does not mean it must be used.
- Necessity must be real. The officer needs the “reason to believe” plus at least one of the listed necessity conditions. Even then, arrest should not happen unless absolutely warranted.
- Arrest is not for asking questions. The Court described the power as a strict, objective necessity, not a convenience. The officer must be satisfied that the investigation cannot proceed effectively without custody.
- Complying with the notice protects you. Section 35(5) creates what the Court called an implied prohibition on arrest of a person who complies, unless adequate reasons are recorded in writing.
- Even non-compliance does not make arrest automatic. A later arrest under Section 35(6) must rest on material that was not available when the notice was issued. Police cannot issue a notice and then arrest on the very same facts.
The Court also approved the Bombay High Court’s reasoning in Chandrashekhar Bhimsen Naik on mandatory compliance with Section 35.
So, Is the Notice Mandatory? The Honest Answer
Here is where careful reading matters. Many online summaries say “the Supreme Court has made notice mandatory before arrest.” That is broadly right for one category of cases, but it is not the whole picture.
| Situation | Is a prior notice required? |
| Cognizable offence punishable up to 7 years | Ordinarily yes. Notice is the rule; arrest only if the Section 35(1)(b) conditions are met, reasons are recorded and arrest is absolutely warranted |
| Offence committed in the officer’s presence (35(1)(a)) | No notice step needed |
| Cognizable offence punishable with more than 7 years or death (35(1)(c)) | Police may arrest on credible information and reason to believe; the notice route is not the default |
| Proclaimed offender, escape from custody, stolen property found on you, etc. (35(1)(d)–(j)) | The words of each clause govern; notice is not the default |
| Non-cognizable offence | Warrant or Magistrate’s order needed (Section 35(2)) |
| Arrest under special laws with their own procedure (e.g., PMLA) | Section 41A did not apply to PMLA arrests, per V. Senthil Balaji (2024) |
One more nuance. According to a legal analysis of the judgment, the Court held that notice is the rule but did not, in so many words, decide what happens to an arrest made with no notice at all. So “mandatory” is best understood as: for offences up to seven years, police must ordinarily issue notice first, and an arrest that skips it must be justified by recorded, necessity-based reasons.
When Can Police Still Arrest Without a Notice?
Three real-world situations:
- Serious offences. Where the punishment may exceed seven years, Section 35(1)(c) lets police arrest on credible information. The Supreme Court’s later reasoning has noted that this clause does not require the extra “necessity” finding that clause (b) does.
- Caught in the act. Offences committed in front of a police officer.
- A genuine, documented necessity under clause (b). For example, a person who has already been threatening witnesses or is destroying documents. But the officer must record the specific reason. A generic line such as “arrest necessary for proper investigation” copied into every file is exactly what courts have started rejecting.
After You Receive a Notice: Your Duties and Protections
Your duty. Section 35(4) makes it your legal duty to comply. Ignoring a notice is the fastest way to lose the protection.
Your protection. If you comply and keep complying, you cannot be arrested in that matter unless the officer records reasons and the arrest stays within the necessity test.
If you genuinely cannot attend. Delhi’s procedure (below) allows you to write to the investigating officer immediately, giving a valid reason and asking for another date, ideally within four working days of the original one. The officer may refuse a request that looks like delay or evasion, so keep a written, receipted copy.
If you stay away. Section 35(6) allows arrest, but even then the arrest should rest on fresh material and be exercised sparingly.
How a Valid Notice Is Served: The Delhi Procedure
No WhatsApp, no email
On 16 July 2025, in a separate order in the Satender Kumar Antil litigation, the Supreme Court held that a Section 35 notice cannot validly be served by WhatsApp or other electronic means. The Court’s reasoning: unlike a summons under Section 71, non-compliance with a Section 35 notice can directly affect your liberty, so the legislature’s omission of electronic service must be respected. It confirmed its earlier direction of 21 January 2025 to States and Union Territories to issue standing orders accordingly.
Practical meaning: A WhatsApp message saying “notice sent, appear tomorrow” is not a valid Section 35 notice.
The numbered booklet
In Amandeep Singh Johar v. State (NCT of Delhi) (2018), the Delhi High Court directed Delhi Police to use serially numbered notice booklets. The original is served on the person, and a carbon copy stays in the case diary, available for the Magistrate to inspect. Used booklets are kept with the SHO until the investigation ends.
Why it matters in court: In Vikas Chawla v. State (NCT of Delhi) (Delhi High Court, 2025), the State could not produce a receipted carbon copy from the numbered booklet. The Court inferred the notice was never served and restored the accused’s bail, also noting that written grounds of arrest had not been given.
What to check on any notice you receive:
- Is it on the official, numbered format with a carbon copy?
- Does it name the police station, FIR number or complaint reference, and the offence?
- Does it state a date, time and place?
- Did you receive the original and sign the receipt on the carbon copy?
- Did the officer attach the documents that the notice refers to?
Latest News: Courts Are Getting Stricter
Karnataka High Court, August 2026. In a widely reported case, police issued a Section 35(3) notice on 25 August 2026 asking a man to appear on 27 August. They arrested him on 25 August itself. The High Court held the arrest illegal and imposed costs on the police, observing that the notice had been reduced to a mere piece of paper. In a connected ruling, the Court said a Section 35(3) notice must come before police curtail anyone’s liberty, not after, and directed statewide police instructions. A notice served when a person is already in police custody is no safeguard.
Karnataka Police circular, 11 September 2026. The State police issued a circular instructing officers to comply strictly with Section 35 and the Supreme Court’s law. It states that notice is the rule and arrest the exception for offences up to seven years.
Supreme Court on grounds of arrest, 6 November 2025. In Mihir Rajesh Shah v. State of Maharashtra (2025 INSC 1288), the Court held that the grounds of arrest must ordinarily be given to the arrested person in writing, in a language they understand. This sits alongside Section 35 but is a separate duty under Article 22(1) of the Constitution and Section 47 BNSS. Reports of the judgment say that failure to supply written grounds can make the arrest unconstitutional and affect the remand that follows.
Delhi High Court. Delhi courts continue to treat the absence of proof of notice service, or of recorded reasons, as a circumstance weighing in favour of bail.
What If Police Skip the Notice or Misuse It?
Bail. The Supreme Court said in 2022 that non-compliance with Sections 41 and 41A entitles the accused to bail, and courts must satisfy themselves about compliance. The same logic is being applied to Section 35.
Remand stage. The Magistrate must examine whether the police have recorded reasons and followed the checklist. Your lawyer can ask the court to look at the case diary, the carbon copy of the notice and the recorded reasons.
High Court. A writ petition challenging an illegal arrest is possible in serious cases, as the Karnataka matters show.
Anticipatory bail. If you fear arrest despite a notice, Section 482 BNSS (old Section 438 CrPC) remains available. We have not found a decision saying that receiving a notice makes an anticipatory bail application unnecessary.
Honest caveat. We have not found a Supreme Court ruling holding that a breach of Section 35(3) alone makes an arrest void. What courts have done is grant bail, impose costs and direct departmental scrutiny. Each case turns on its facts.
A Practical Checklist If a Police Officer Calls or Sends a Notice
- Do not ignore it. Non-compliance can cost you the shield under Section 35(5).
- Read the notice carefully and keep the original safe. Photograph both sides.
- Ask for the offence and FIR details. Note the sections invoked and their maximum punishment. This decides whether the “seven-year” rule applies.
- Consult a criminal lawyer before attending. Your advocate can assess whether anticipatory bail is wise.
- Attend on the given date with ID and any documents the notice asks for. Carry a copy of the notice.
- Note your arrival time and the time you leave. If you are held, these times matter for the 24-hour production rule and any later challenge.
- Do not sign blank papers. Sign only what you have read and understood.
- Ask for written grounds if you are arrested, and ask that a relative be informed.
- If you are above 60 or infirm and the offence carries less than three years, mention Section 35(7) to your lawyer.
- If you cannot attend, write to the investigating officer immediately, get a receipt and propose a new date.
Frequently Asked Questions
Is a Section 35 BNSS notice the same as Section 41A CrPC?
Substantively yes. Sub-sections (3) to (6) of Section 35 carry over the old Section 41A almost word for word. The new addition is sub-section (7) on senior or infirm persons.
Can police arrest me immediately after issuing a notice?
Not ordinarily. If you comply, Section 35(5) bars arrest unless recorded reasons justify it. The Supreme Court has also said a post-notice arrest must be based on material not available when the notice was issued.
What if I miss the date?
Section 35(6) lets police arrest, but arrest is still not automatic. Write to the officer at once with a valid reason.
Is a phone call or WhatsApp message a valid notice?
No. The Supreme Court has held electronic service is not a valid mode of serving a Section 35 notice.
Does the notice rule apply to every offence?
No. It is strongest for offences up to seven years. Serious offences, offences committed in a police officer’s presence and special-law arrests follow different rules.
Do police need a notice for non-cognizable offences?
They need a warrant or Magistrate’s order under Section 35(2), subject to Section 39.
Can a senior citizen be arrested?
For offences punishable with less than three years, only with prior permission of an officer not below DSP rank (Section 35(7)). Courts have not yet interpreted this new sub-section, so its consequence on breach is untested.
Does receiving a notice mean I will be arrested?
No. A notice exists precisely because the police have formed the view, at that stage, that arrest is not required.
Key Takeaways
- Section 35 BNSS (not BNS) governs arrest and notice; it replaces Sections 41 and 41A CrPC.
- For offences punishable up to seven years, a Section 35(3) notice is the rule and arrest the exception.
- Notice is not required for every arrest: serious offences, offences in police presence and special-law arrests differ.
- A notice is not valid if sent only on WhatsApp or email.
- Complying with the notice is your legal duty and your best protection.
- Courts are increasingly granting bail and imposing costs where police skip or misuse the notice.
This blog is for general information only and is not legal advice. Every case turns on its own facts; please consult an advocate before acting.
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