Received a Police Notice Under Section 35(3) BNSS in Gurugram? What It Means and What to Do

A police officer arrives at your door, or calls you, and hands over a paper asking you to appear at the police station on a certain date in connection with an FIR. For most people this is alarming: does it mean arrest is coming? Should you go? Should you take someone with you?

In most cases this paper is a notice of appearance under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 41A of the old Code of Criminal Procedure. Understood properly, it is a safeguard for you, not a step towards arrest. But it has to be handled correctly.

What is a Section 35(3) notice?

The BNSS allows the police to arrest without a warrant only in limited situations. For offences punishable with imprisonment of up to seven years, the officer must be satisfied that arrest is actually necessary, for example to prevent further offences, to ensure a proper investigation, or to prevent tampering with evidence or witnesses, and must record reasons in writing.

Where arrest is not required, Section 35(3) says the officer shall issue a notice directing the person to appear before him, or at a specified place. In plain words: the law prefers that you be asked to join the investigation rather than be taken into custody. Courts have repeatedly described this as "notice is the rule, arrest the exception" for such offences.

Notices are commonly issued in cases of cheating, criminal breach of trust, cruelty and dowry-related allegations, cheque-related disputes, online fraud complaints and many other offences that carry punishment of seven years or less.

Is the notice an arrest?

No. Receiving the notice does not mean you are under arrest, and it does not by itself mean you will be arrested. Section 35(5) provides that where a person complies with the notice and continues to comply, they shall not be arrested for the offence mentioned in it, unless the officer records reasons why arrest has become necessary.

The flip side is important. Under Section 35(6), if a person fails to comply with the notice, or is unwilling to identify themselves, the officer may arrest them, subject to any orders a competent court may pass. Ignoring the notice is therefore the surest way to invite arrest.

Special protection for senior citizens and the infirm

Section 35(7) adds a further safeguard: a person who is infirm or above sixty years of age shall not be arrested for an offence punishable with imprisonment of less than three years without the prior permission of an officer not below the rank of Deputy Superintendent of Police.

How the notice should be served

The notice should be in writing and should identify the FIR or complaint, the police station, and the date, time and place where you are to appear. The Supreme Court has directed that these notices be served in the manner the law provides, and not through WhatsApp or other electronic messaging. If you only receive a phone call or a message, ask politely for the written notice.

What to do when you receive the notice

1. Read it carefully and keep the original safe. Note the FIR number, police station, sections mentioned, and the date and time of appearance.
2. Get a copy of the FIR. In Haryana, FIRs are generally available online through the state police citizen services portal, except in sensitive cases. You need to know exactly what is alleged.
3. Take legal advice before you appear. An advocate can assess the allegations, the punishment for the offences named, and whether there is any real risk of arrest.
4. Consider whether anticipatory bail is needed. If the sections include an offence punishable with more than seven years, or there are signs that the police may arrest despite the notice, an application for anticipatory bail under Section 482 BNSS may be advisable before you appear.
5. Collect your documents. Agreements, receipts, bank statements, messages and emails that show your side of the matter. Make copies; do not hand over originals unless required, and ask for a seizure memo if anything is taken.
6. Appear on the date given. If you genuinely cannot, inform the investigating officer in writing in advance with the reason and request a new date. Keep proof of that request.

At the police station

• Carry the notice, an identity proof and copies of your documents.
• Be courteous and cooperative. Answer questions truthfully, but you are not required to make statements that incriminate you.
• Do not sign blank papers or statements you have not read. Read anything put before you, and ask for corrections if it does not record what you said.
• Note the names of the officers you meet and the time you arrived and left.
• You may be asked to come again. Continued cooperation is part of "complying with the notice" under Section 35(5).

What if you are arrested anyway?

If the police decide that arrest has become necessary after you appear, they must record reasons for it. You then have all the rights of an arrested person, including being told the grounds of arrest, having a family member informed, and being produced before a Magistrate within 24 hours, at which stage a bail application can be moved. Arrest in disregard of the notice procedure can also be challenged before the court. Our page on how criminal cases move through the Gurugram courts explains which court hears which application.