Section 35 BNSS: The New Law on Police Notices in India – A Complete Guide

The Indian legal system is in the midst of a historic transformation. The colonial-era Code of Criminal Procedure (CrPC), 1973, is making way for the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. For every citizen, understanding these changes is not just academic; it’s essential for protecting one’s liberty, especially during interactions with law enforcement.

One of the most common and anxiety-inducing of these interactions is the receipt of a formal police notice. What was famously known as a “Notice 41A” under the CrPC will now be issued under Section 35 of the BNSS. The arrival of this document can unleash a torrent of questions: Am I being arrested? What are the allegations? What are the consequences of my actions?

At Kapil Dixit LLP, a trusted law firm in Bengaluru, we are committed to demystifying the law and empowering citizens. This comprehensive guide will dissect the notice under Section 35 BNSS, trace its judicial evolution through two landmark Supreme Court judgments, and provide a clear, strategic roadmap to navigate the process.

The Evolution of Police Notices: From Section 41A CrPC to Section 35 BNSS

While the section number has changed, the core principle has been strengthened. Section 35 of the BNSS, 2023, authorizes a police officer to issue a “notice of appearance” to an individual when there is a reasonable complaint, credible information, or a reasonable suspicion that they have committed a cognizable offense.

Crucially, this notice is reserved for cases where the police do not believe an immediate arrest is necessary for the investigation. Its fundamental purpose is to balance the state’s need to investigate crime with the individual’s fundamental right to liberty, as enshrined in Article 21 of the Constitution. It is a powerful tool designed to prevent the trauma and misuse of the power of arrest.

The Judicial Pillars Protecting Your Liberty

The protections embedded in Section 35 are not legislative afterthoughts; they are the direct result of decades of judicial activism by the Supreme Court of India to curb police overreach. Two cases, in particular, form the bedrock of your rights in this context.

Long before the focus shifted to preventing unnecessary arrests, the Supreme Court addressed a more harrowing issue: custodial violence and the abuse of power during detention. The landmark judgment in D.K. Basu established a set of non-negotiable procedural safeguards for every arrest and detention. It recognized that the rights of a citizen do not vanish the moment they are taken into custody.

The “D.K. Basu Guidelines” are a charter of rights that every person and police officer must know. Key directives include:

• Clear Identification: All police personnel carrying out an arrest or interrogation must wear accurate, visible, and clear identification and name tags.
• Preparation of an Arrest Memo: A memorandum of arrest must be prepared at the time of arrest. This memo must include the date and time of the arrest and must be attested by at least one witness, who could be a family member of the arrestee or a respectable person from the locality. It must also be countersigned by the arrestee.
• Right to Inform Someone: The arrested person has the right to have one friend, relative, or other person who is known to them be informed of their arrest and the place of detention as soon as practicable.
• Documentation in a Diary: An entry must be made in the police diary regarding the arrest, the place of detention, and the name of the person who has been informed.
• Right to Legal Counsel: The arrestee must be made aware of their right to meet a lawyer during interrogation, although not necessarily throughout the entire interrogation.
• Medical Examination: The person arrested must be examined for any injuries at the time of arrest, and an “inspection memo” must be prepared and signed by both the officer and the arrestee. They are entitled to a medical examination by a qualified doctor every 48 hours during detention.

The D.K. Basu judgment established the fundamental ground rules for any interaction that involves detention. It ensures transparency, accountability, and the preservation of human dignity.

Building upon the foundation of D.K. Basu, the Supreme Court in Arnesh Kumar tackled the problem at its root: the practice of “automatic arrests.” The Court observed that for offenses punishable with imprisonment up to seven years, arrests were being made routinely without proper justification, clogging the justice system and causing immense hardship.

The Arnesh Kumar judgment directly led to the strengthening of Section 41A CrPC (now Section 35 BNSS) by issuing these binding directions:

1. No Automatic Arrests: For offenses with a maximum punishment of up to seven years, a police officer cannot arrest an accused person mechanically.
2. Mandatory Notice: The police must first issue a notice of appearance.
3. Justification for Arrest: An arrest can only be made if the officer is satisfied that it is necessary to prevent further offenses, for proper investigation, to prevent tampering with evidence, or to ensure the accused’s presence in court. These reasons must be recorded in writing.
4. Accountability: Failure by police to comply with these directions would result in departmental action and potential contempt of court proceedings.

The Combined Safety Net: Think of these two judgments as a two-layered legal safety net. Arnesh Kumar and Section 35 BNSS are your first line of defense, designed to prevent an unnecessary arrest from ever happening. If, however, a situation escalates to detention or arrest, the D.K. Basu guidelines immediately activate as your second line of defense, ensuring your rights are protected while in custody.

Decoding the Section 35 Notice: A Practical Checklist

When a notice arrives, methodically check the following:

• Your name and address.
• The issuing police station’s details.
• The FIR or complaint number.
• The specific legal sections mentioned.
• The name and rank of the Investigating Officer (IO).
• The precise date, time, and location for your appearance.

The Critical Choice: Compliance vs. Non-Compliance

Your response to the notice dictates the immediate future of your case.

Path 1: Compliance (Your Legal Shield)
Section 35(3) of the BNSS is unequivocal: as long as you comply with the notice, you shall not be arrested unless the police officer records written reasons justifying the necessity of an arrest. This makes arbitrary arrests extremely difficult and legally challengeable.

Path 2: Non-Compliance (The Legal Pitfall)
Section 35(4) is the warning. Ignoring the notice, failing to appear, or refusing to identify yourself gives the police the legal authority to arrest you. You forfeit the powerful protection the law offers.

Your Action Plan: A Step-by-Step Guide After Receiving a Section 35 Notice

1. Stay Calm, Act Promptly: Acknowledge the notice’s seriousness without panicking. Ignoring it is the worst possible action.
2. Engage an Expert Criminal Lawyer Immediately: This is non-negotiable. Before responding, consult a lawyer. They will:
   • Analyze the notice and the underlying FIR to gauge the severity of the allegations.
   • Brief you on your constitutional rights, especially the right against self-incrimination.
   • Prepare you for the police inquiry, anticipating questions and framing appropriate responses.
   • Evaluate the need for pre-emptive measures like applying for anticipatory bail under Section 482 of the BNSS.

3. Prepare with Your Lawyer: Gather all relevant documents and evidence. Strategize the best way to present your case without compromising your legal standing.
4. Attend the Inquiry: Appear as required, preferably with your lawyer. Their presence acts as a deterrent against unfair practices and ensures the proceedings are conducted correctly.
5. Cooperate with Caution: Answer questions truthfully but avoid volunteering unsolicited information. Your lawyer will have guided you on maintaining this crucial balance.

Frequently Asked Questions (FAQs) about Section 35 BNSS

Your Liberty is Non-Negotiable. Defend it with Expertise.

The legal framework, from the foundational rights in D.K. Basu to the preventive shield of Arnesh Kumar and Section 35 BNSS, is designed to protect you. A notice of appearance is a serious legal matter that marks a critical point in an investigation. Your handling of it can alter the entire trajectory of your case.

Protect Your Rights with Expert Legal Counsel

If you have received a notice under Section 35 of the BNSS, do not navigate this complex process alone. The expert criminal defense team at Kapil Dixit LLP is here to provide immediate, strategic, and robust legal support.

Contact us today to schedule a confidential consultation. We are available for in-person meetings at our Bengaluru office or through secure video conferencing to discuss your case and build your defense strategy.