Section 35(3) BNSS Notice Explained: Meaning, Procedure, Rights & Supreme Court Guidelines

Learn what a Section 35(3) BNSS notice is, when police can issue it, your legal rights, whether arrest is still possible, and the latest Supreme Court guidelines.

Table of Contents

Introduction

Receiving a Section 35(3) BNSS notice from the police can be an unsettling experience. For many people, the first reaction is panic, with the immediate assumption that an arrest is imminent or that they will be taken into custody as soon as they appear before the Investigating Officer. This misunderstanding often leads to unnecessary anxiety, hasty decisions, and, in some cases, avoidable legal complications.

In reality, a notice issued under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is not an arrest warrant. Rather, it is a statutory mechanism that requires a person to appear before the police and cooperate with the investigation without being arrested immediately. The provision reflects the principle that personal liberty should not be curtailed unless arrest is genuinely necessary.

The introduction of Section 35(3) is part of a broader legislative effort to strike a balance between effective criminal investigation and the fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India. Instead of treating arrest as a routine step in every investigation, the law encourages the police to secure a suspect’s cooperation through a notice of appearance whenever the circumstances permit.

The importance of this safeguard has been repeatedly emphasised by the Supreme Court, which has held that for offences punishable with imprisonment of up to seven years, issuing a notice under Section 35(3) BNSS is ordinarily the rule, while arrest is the exception. The police must assess whether arrest is actually necessary in the facts of each case and cannot deprive a person of liberty merely because they possess the legal power to do so.

This guide explains what a Section 35(3) BNSS notice is, when it can be issued, the rights and obligations of the recipient, whether the police can still make an arrest after issuing the notice, and the latest legal principles laid down by the Supreme Court and various High Courts.

What is Section 35(3) of the BNSS?

Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) empowers the police to issue a notice of appearance to a person against whom there is a reasonable complaint, credible information, or reasonable suspicion of involvement in a cognizable offence. Instead of arresting the person immediately, the Investigating Officer may direct them to appear before the police at a specified place and time and cooperate with the investigation.

The provision is a statutory safeguard designed to ensure that a person’s liberty is not curtailed unnecessarily while enabling the police to carry out an effective investigation. It reflects the principle that arrest should not be the first response in every criminal case, particularly where the objectives of the investigation can be achieved by securing the person’s voluntary appearance.

Statutory Provision

Section 35(3) of the BNSS provides that where arrest is not required under the circumstances specified in Section 35, the police officer shall issue a notice directing the person to appear before the Investigating Officer or another designated officer. Upon receiving such notice, the person is legally required to comply and cooperate with the investigation.

If the person complies with the notice and continues to cooperate, they should ordinarily not be arrested unless the Investigating Officer subsequently records reasons showing that arrest has become necessary in accordance with law.

Legislative Purpose

The primary objective behind Section 35(3) is to prevent unnecessary and arbitrary arrests. An arrest has serious consequences—it restricts personal liberty, affects reputation, employment, business, and family life, and may cause irreversible hardship even before guilt is established.

Recognising these consequences, Parliament incorporated this provision to ensure that arrest is used only when it is genuinely required for purposes such as:

preventing the commission of further offences;
ensuring a proper and effective investigation;
preventing destruction or tampering with evidence;
preventing intimidation or influence over witnesses; or
securing the accused’s presence before the court.

Where none of these circumstances exist, the law prefers a notice of appearance over immediate arrest.

Who Can Receive a Section 35(3) Notice?

A notice under Section 35(3) may be issued to any person who is suspected of involvement in a cognizable offence, provided the Investigating Officer forms the opinion that immediate arrest is not necessary under the conditions laid down in Section 35.

In practice, such notices are commonly issued in investigations involving offences punishable with imprisonment of up to seven years, including various economic offences, matrimonial disputes, cheating allegations, criminal breach of trust, cyber offences, and other cases where custodial interrogation is not immediately required.

However, the issuance of a notice depends on the facts and circumstances of each case rather than the mere nature of the offence.

When Do the Police Issue a Section 35(3) Notice?

The police ordinarily issue a Section 35(3) notice after registering an FIR or during the course of an investigation when they require the suspect’s presence for questioning, collection of documents, identification, or other investigative purposes but do not consider arrest to be necessary at that stage.

Before deciding to arrest, the Investigating Officer must evaluate whether the objectives of the investigation can be achieved through the person’s cooperation. If attendance can be secured by issuing a notice, the law expects the police to adopt that less restrictive course.

A person receiving such a notice must appear before the Investigating Officer on the specified date and time and cooperate with the investigation. Failure to comply without a valid reason may provide grounds for the police to reconsider the necessity of arrest, subject to the statutory requirements.

Difference Between a Section 35(3) Notice and an Arrest

Although both a notice and an arrest are part of the criminal investigation process, they have entirely different legal consequences.

Section 35(3) BNSS Notice	Arrest
Requires the person to appear before the Investigating Officer.	Results in the person being taken into police custody or judicial custody.
Does not deprive the person of personal liberty.	Restricts the person’s liberty and freedom of movement.
Enables investigation without immediate detention.	Involves physical restraint and legal custody.
Intended to secure cooperation with the investigation.	Used only when the statutory conditions for arrest are satisfied.
Non-compliance may lead the police to consider arrest after recording reasons.	The arrested person must be produced before the Magistrate within the time prescribed by law.

It is, therefore, important to understand that a Section 35(3) BNSS notice is not an arrest warrant. Receiving such a notice does not mean that the person has been found guilty or that arrest is inevitable. It is a legal opportunity to cooperate with the investigation while retaining personal liberty, subject to continued compliance with the law.

Why Was Section 35(3) Introduced?

The introduction of Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is rooted in a long-standing concern over the indiscriminate use of arrest powers by law enforcement agencies. For decades, arrests were often made as a matter of routine immediately after the registration of an FIR, even in cases where custodial interrogation was unnecessary and the accused was willing to cooperate with the investigation. Such practices not only burdened the criminal justice system but also resulted in serious violations of individual liberty.

Recognising these concerns, Parliament retained the concept of a notice of appearance—earlier contained in Section 41A of the Code of Criminal Procedure, 1973 (CrPC)—and incorporated it into the BNSS as Section 35(3) with suitable modifications. The provision reinforces the principle that an arrest should be based on necessity rather than mere suspicion or the existence of the power to arrest.

The Problem of Unnecessary Arrests

An arrest is one of the most intrusive actions that the State can take against an individual. Even before a court determines guilt, an arrest can have severe consequences, including:

Loss of personal liberty.
Damage to reputation and social standing.
Suspension or termination of employment.
Financial hardship.
Emotional distress to the individual and family.
Unnecessary overcrowding of prisons.

In many instances, arrests were made not because they were essential for the investigation, but because they were perceived as the default course of action after the registration of a cognizable offence. Courts repeatedly expressed concern that such mechanical arrests undermined the presumption of innocence and exposed citizens to avoidable hardship.

Section 35(3) seeks to address this problem by requiring the police to first consider whether the objectives of the investigation can be achieved through a notice of appearance instead of immediate arrest.

Protection of Personal Liberty Under Article 21

The constitutional foundation of Section 35(3) lies in Article 21 of the Constitution of India, which guarantees that no person shall be deprived of their life or personal liberty except according to the procedure established by law.

The Supreme Court has consistently held that the “procedure established by law” must be just, fair, and reasonable, and not arbitrary or oppressive. Since arrest directly interferes with a person’s liberty, the decision to arrest cannot be mechanical or based solely on the existence of an allegation. The investigating agency must be able to justify why arrest is necessary in the facts of a particular case.

By providing for a notice of appearance where immediate arrest is not required, Section 35(3) promotes a less restrictive alternative that respects constitutional rights while allowing the investigation to proceed effectively. It reflects the broader constitutional principle that the State must adopt the least intrusive measure necessary to achieve a legitimate investigative objective.

Recommendations of the Law Commission

The concept of issuing a notice instead of making an immediate arrest did not originate with the BNSS. It was recommended by the 177th Report of the Law Commission of India, which observed that arrests were frequently being made even when they served no useful investigative purpose.

The Law Commission recommended introducing a statutory mechanism requiring the police to issue a notice directing the suspect to appear before the investigating officer whenever arrest was not immediately necessary. The objective was to ensure that individuals cooperated with the investigation without being subjected to unnecessary detention.

These recommendations eventually led to the insertion of Section 41A in the Code of Criminal Procedure, 1973, through the Code of Criminal Procedure (Amendment) Act, 2008. The provision was later strengthened by judicial pronouncements emphasising that arrest should be an exception rather than the norm.

Continuation of Section 41A CrPC Under the BNSS

Section 35(3) of the BNSS is the legislative successor to Section 41A of the Code of Criminal Procedure, 1973. While the language has been updated to align with the new criminal procedure framework, the underlying objective remains substantially the same—to reduce unnecessary arrests and encourage voluntary cooperation with the investigation.

The BNSS, however, integrates the notice requirement more closely with the revised provisions governing arrest under Section 35. Read together, these provisions require the Investigating Officer to first assess whether arrest is genuinely necessary. If the statutory conditions for arrest are not satisfied, the officer should ordinarily issue a notice requiring the person to appear and cooperate.

This continuity reflects Parliament’s intention to preserve the safeguards developed under the CrPC while strengthening procedural fairness under the new criminal laws.

A Shift from “Power to Arrest” to “Need to Arrest”

Perhaps the most significant change reflected in Section 35(3) is the shift in legal philosophy. Earlier, the existence of the power to arrest was often treated as sufficient justification for exercising that power. The modern approach adopted by both Parliament and the judiciary is fundamentally different.

Today, the relevant question is not whether the police have the power to arrest, but whether the facts of the case make arrest necessary.

Section 35(3) embodies this principle by ensuring that cooperation with the investigation is secured through a notice of appearance wherever possible, while reserving arrest for cases where it is genuinely required to protect the investigation, prevent interference with evidence or witnesses, or ensure the administration of justice.

Text of Section 35(3) of the BNSS

Statutory Provision

Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, substantially provides that where the arrest of a person is not required under Section 35, the police officer shall issue a notice directing that person to appear before the Investigating Officer or another specified officer at a designated place and time. A person receiving such notice is legally bound to comply with its terms. If the person continues to comply with the notice, they should ordinarily not be arrested unless the Investigating Officer records reasons demonstrating that arrest has subsequently become necessary in accordance with law.

Simple Explanation of Section 35(3)

Although the legal language of Section 35(3) may appear technical, its practical effect is quite straightforward. The exact text of Section 35(3) of the BNSS is reproduced below:

(3) The police officer shall, in all cases where the arrest of a person is not required under sub-section (1) issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

The provision authorises the police to call a suspect for investigation without immediately arresting them. Instead of taking the person into custody, the Investigating Officer serves a written notice requiring them to appear before the police on a specified date, time, and place.

The person receiving the notice is expected to cooperate with the investigation by answering lawful questions, producing relevant documents or electronic records if required, and remaining available whenever their presence is reasonably necessary.

If the recipient complies with the notice and cooperates with the investigation, the law generally protects them from unnecessary arrest. However, this protection is not absolute. If, during the course of the investigation, the Investigating Officer finds that arrest has become necessary—for example, because the person is evading the investigation, influencing witnesses, destroying evidence, or any other statutory ground exists—the police may arrest the person after recording reasons as required under Section 35.

In simple terms, Section 35(3) replaces immediate arrest with an opportunity to cooperate. The law recognises that not every criminal investigation requires custodial detention and that, in many cases, the objectives of the investigation can be achieved by securing the person’s appearance through a notice.

Breaking Down the Provision

To better understand Section 35(3), it is useful to examine each part separately.

1. “Where arrest is not required…”

The police cannot issue a notice mechanically. The Investigating Officer must first determine whether arrest is actually necessary under the conditions prescribed in Section 35. If those conditions are not satisfied, the law expects the officer to issue a notice instead of making an immediate arrest.

2. “Issue a notice directing the person to appear…”

The notice informs the recipient that they are required to appear before the Investigating Officer on a specified date, time, and place. It is a legal direction and should not be ignored.

3. “The person shall comply with the notice.”

Compliance is a statutory obligation. The recipient should attend the investigation as directed and cooperate with lawful investigative procedures. Ignoring the notice without sufficient cause may have adverse legal consequences.

4. “Ordinarily, no arrest if the person complies.”

This is the most significant safeguard provided by the provision. A person who appears before the police and cooperates with the investigation should generally not be arrested merely because an FIR has been registered against them.

5. “Arrest is still possible if circumstances change.”

Compliance with a Section 35(3) notice does not grant permanent immunity from arrest. If new facts emerge during the investigation that make arrest legally necessary, the Investigating Officer may proceed with arrest, provided the statutory conditions are satisfied and reasons are properly recorded.

Section 35(3) embodies a simple but important principle of criminal procedure: cooperation should ordinarily precede custody. Instead of treating arrest as the automatic consequence of an FIR, the law requires the police to first consider whether the investigation can be effectively carried out through a notice of appearance. Only where arrest becomes genuinely necessary should the State resort to depriving a person of their liberty.

When Can the Police Issue a Section 35(3) BNSS Notice?

A notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is not issued in every criminal case. It is intended to be used where the law permits the police to proceed with the investigation without immediately arresting the suspect. Before issuing such a notice, the Investigating Officer must evaluate the facts of the case and determine whether the statutory conditions for arrest are actually satisfied.

Broadly, a Section 35(3) notice is appropriate when:

the alleged offence is punishable with imprisonment of up to seven years;
there is reasonable material connecting the person with the offence;
an investigation is underway and the person’s presence is required; and
immediate arrest is not necessary to achieve the objectives of the investigation.

Each of these requirements is explained below.

1. Offences Punishable with Imprisonment of Up to Seven Years

Section 35(3) primarily applies to offences where the maximum prescribed punishment does not exceed seven years’ imprisonment. In such cases, the BNSS does not contemplate arrest as the automatic or default response to the registration of an FIR.

Instead, the Investigating Officer must first examine whether the purposes of the investigation can be achieved without taking the person into custody. If the answer is yes, the law expects the officer to issue a notice of appearance rather than make an immediate arrest.

This approach recognises that many offences can be investigated effectively through questioning, collection of documents, and cooperation from the suspect, without resorting to detention.

2. There Must Be Reasonable Complaint, Credible Information or Reasonable Suspicion

The police cannot issue a Section 35(3) notice arbitrarily or based on mere speculation. The investigation must disclose a reasonable complaint, credible information, or reasonable suspicion that the person may have committed a cognizable offence.

This threshold is lower than proof beyond reasonable doubt, but it is higher than a vague or unsubstantiated allegation. The Investigating Officer must possess some objective material linking the person to the offence before requiring them to appear for investigation.

The notice is therefore an investigative tool used to verify allegations, record the person’s version, collect evidence, and determine whether the accusation is substantiated.

3. An Investigation Must Be Pending

A Section 35(3) notice is issued during the course of a criminal investigation. Typically, the police issue the notice after registering an FIR or after receiving information that requires investigation into a cognizable offence.

The purpose of calling the person may include:

recording their statement;
seeking clarification regarding the allegations;
collecting documents or electronic records;
identifying relevant witnesses;
recovering property or evidence; or
completing other lawful investigative formalities.

The notice ensures that the person’s presence is secured without unnecessarily depriving them of their liberty.

4. Arrest Must Not Be Immediately Necessary

This is the most important condition governing the issuance of a Section 35(3) notice.

The Investigating Officer must independently assess whether arrest is actually required for reasons recognised by law, such as:

preventing the commission of another offence;
ensuring a proper and effective investigation;
preventing destruction, concealment, or tampering with evidence;
preventing the accused from influencing or threatening witnesses;
preventing the accused from absconding; or
ensuring the person’s presence before the court whenever required.

If none of these circumstances exist, the law expects the police to issue a notice under Section 35(3) instead of making an immediate arrest.

The emphasis is therefore on the necessity of arrest, not merely the existence of the legal power to arrest.

Practical Examples

Understanding the provision becomes easier through practical illustrations.

Example 1: Cheating Allegation

A businessman is accused of cheating in a commercial transaction punishable with imprisonment of up to seven years. He has a permanent residence, has cooperated with the investigation, and has already supplied all relevant financial records.

Since there is no risk of absconding or tampering with evidence, the Investigating Officer may issue a Section 35(3) notice requiring him to appear for questioning instead of arresting him.

Example 2: Matrimonial Dispute

An FIR is registered alleging offences arising out of a matrimonial dispute. The husband appears before the Investigating Officer whenever called, submits the requested documents, and fully cooperates with the investigation.

In these circumstances, immediate arrest may not be necessary, and the investigation can ordinarily proceed through a notice of appearance.

Example 3: Cyber Fraud Investigation

A person is suspected of participating in an online financial fraud. The police need access to the person’s mobile phone, email records, and bank transaction details but do not have any reason to believe that the person will flee or interfere with the investigation.

Instead of arresting the suspect, the Investigating Officer may issue a Section 35(3) notice directing the person to appear and produce the relevant digital evidence.

Example 4: When a Notice May Not Be Appropriate

Suppose the accused has ignored repeated police communications, is attempting to leave the country, has threatened witnesses, or is actively destroying electronic evidence.

In such circumstances, the Investigating Officer may conclude that a notice alone would not adequately protect the investigation. If the statutory requirements under Section 35 are satisfied, the police may proceed with arrest instead of issuing a notice.

The Governing Principle

The issuance of a Section 35(3) notice depends on the necessity of arrest, not merely the seriousness of the allegation. Even where an FIR has been registered, the police are expected to assess whether the investigation can be effectively completed through the suspect’s cooperation. If the answer is yes, a notice of appearance should ordinarily be issued, reserving arrest for cases where it is genuinely required by law.

Is Issuing a Section 35(3) BNSS Notice Mandatory?

One of the most frequently asked questions is whether the police are legally bound to issue a Section 35(3) BNSS notice before arresting a person. The answer depends on the facts of the case and the statutory conditions governing arrest.

The provision does not make a notice mandatory in every criminal case. However, where the statutory conditions indicate that immediate arrest is not necessary, the Investigating Officer is ordinarily required to issue a notice of appearance instead of taking the person into custody.

In other words, the necessity of arrest—not the mere existence of the power to arrest—determines whether a Section 35(3) notice should be issued.

The Statutory Language of Section 35(3)

Section 35(3) must be read together with Section 35(1) of the BNSS.

Section 35(1) specifies the circumstances in which a police officer may arrest a person without a warrant. These circumstances are not exhaustive powers to arrest in every case; rather, they identify the situations where arrest is considered legally justified, such as preventing further offences, ensuring a proper investigation, preventing tampering with evidence, protecting witnesses, or securing the accused’s presence before the court.

Section 35(3) operates as a safeguard. Where the Investigating Officer concludes that these grounds do not exist, the law requires the officer to secure the person’s cooperation by issuing a notice of appearance instead of making an immediate arrest.

Therefore, the statutory scheme establishes a clear sequence:

The Investigating Officer must first examine whether arrest is genuinely necessary under Section 35.
If arrest is necessary, the officer may arrest after complying with the statutory requirements.
If arrest is not necessary, the officer should ordinarily issue a notice under Section 35(3).

This demonstrates that a notice is not an alternative to lawful arrest where arrest is genuinely required. Rather, it is the statutory mechanism that replaces unnecessary arrest.

Supreme Court Decisions on Mandatory Notice

The principle underlying Section 35(3) has been repeatedly affirmed by the Supreme Court.

In Arnesh Kumar, the Court held that police officers should not make arrests mechanically merely because they possess the legal authority to do so. Before arresting a person in offences punishable with imprisonment of up to seven years, the Investigating Officer must determine whether arrest is actually necessary. The Court also directed that where arrest is not required, the police should issue a notice of appearance instead of taking the accused into custody.

These directions transformed the legal approach to arrests by emphasising that the power to arrest is distinct from the justification for exercising that power.

Supreme Court on Section 35(3) BNSS: Notice Before Arrest and Valid Mode of Service.

The Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation, 2026 INSC 115 has reaffirmed that in cases involving offences punishable with imprisonment of up to seven years, the police should ordinarily issue a notice of appearance under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) instead of making an immediate arrest. Arrest is an exceptional measure and can be resorted to only when the statutory conditions under Section 35 are satisfied and the investigating officer records specific reasons demonstrating that custody is genuinely necessary.

The Court explained that the power to arrest under Section 35 is discretionary, not automatic. Before arresting an accused, the police must have a reasonable belief that the person has committed the offence and must also establish that arrest is required for one or more legally recognised purposes, such as ensuring a proper investigation, preventing destruction of evidence, or avoiding witness intimidation. Even where these conditions exist, arrest should not be treated as the default course of action.

The judgment further clarifies that issuance of a notice under Section 35(3) is intended to safeguard personal liberty by allowing the accused to cooperate with the investigation without unnecessary detention. If a notice has already been issued, the subsequent power to arrest under Section 35(6) cannot be exercised mechanically. Any later arrest must be justified by fresh facts or circumstances that arise after the notice was served and must be supported by independent reasons.

In a separate ruling (2025 INSC 909), the Supreme Court also held that notices under Section 35(3) BNSS (or Section 41A of the erstwhile CrPC) cannot be served through WhatsApp, email, or other electronic modes. Since failure to comply with such a notice may lead to arrest, the Court ruled that the Legislature intentionally excluded these notices from the provisions permitting electronic service. Notices issued by the police are executive actions and must be served in the manner prescribed by law. Consequently, any arrest or coercive action based solely on an electronically served notice may be challenged as being contrary to the BNSS and violative of due process.

When Can the Police Not Bypass a Section 35(3) Notice?

The police cannot simply avoid issuing a notice because an FIR has been registered or because the allegation appears serious.

Ordinarily, the Investigating Officer should issue a Section 35(3) notice where:

the offence is punishable with imprisonment of up to seven years;
the accused is identifiable and available for investigation;
there is no reasonable apprehension that the accused will abscond;
there is no material suggesting that the accused will destroy or tamper with evidence;
there is no likelihood of influencing or threatening witnesses;
custodial interrogation is not genuinely required; and
the investigation can be effectively carried out through the accused’s cooperation.

In such situations, bypassing the statutory safeguard without recording legally sustainable reasons may render the arrest vulnerable to judicial scrutiny.

When Can the Police Arrest Without First Issuing a Notice?

The law does not require the police to issue a Section 35(3) notice in every case.

Where the statutory conditions for arrest are satisfied—for example, if the accused is attempting to abscond, threatening witnesses, destroying evidence, repeatedly refusing to cooperate, or custodial interrogation is genuinely necessary—the Investigating Officer may proceed with arrest in accordance with Section 35.

Similarly, where the offence carries a punishment exceeding seven years, or falls within categories where the statutory framework permits immediate arrest, the requirement of issuing a Section 35(3) notice may not arise.

The crucial point is that the decision must be based on objective necessity, not administrative convenience or routine practice.

Consequences of Ignoring the Statutory Safeguard

If the police arrest a person in a case where a Section 35(3) notice ought to have been issued, without recording proper reasons demonstrating the necessity of arrest, the legality of that arrest may be challenged before the appropriate court.

Such non-compliance may be relevant while considering:

anticipatory or regular bail;
the legality of the arrest;
departmental accountability of the Investigating Officer; and
compliance with the constitutional guarantee of personal liberty under Article 21.

Courts have repeatedly emphasised that failure to follow the statutory safeguards governing arrest undermines the fairness of the criminal justice process.

A Section 35(3) BNSS notice is not mandatory in every criminal case, but it is ordinarily mandatory where immediate arrest is not justified under Section 35. The Supreme Court has consistently held that for offences punishable with imprisonment of up to seven years, the normal course is to issue a notice of appearance and secure the accused’s cooperation, reserving arrest for cases where it is demonstrably necessary. The burden lies on the Investigating Officer to justify why arrest was required; it is not for the accused to prove why they should not have been arrested.

Can the Police Arrest Without Issuing a Section 35(3) BNSS Notice?

Yes. The police can arrest a person without first issuing a Section 35(3) BNSS notice, but only in circumstances where the law permits immediate arrest. A Section 35(3) notice is intended to prevent unnecessary arrests—it does not eliminate the statutory power of arrest.

The deciding factor is whether arrest is genuinely necessary under Section 35 of the BNSS. If the Investigating Officer can objectively justify the need for immediate arrest based on the facts of the case, the police are not required to issue a notice of appearance before taking the person into custody.

However, the decision to bypass a Section 35(3) notice cannot be arbitrary, mechanical, or based solely on the registration of an FIR. The Investigating Officer must be able to demonstrate that one or more legally recognised grounds for arrest exist.

Exceptional Circumstances Justifying Immediate Arrest

The BNSS contemplates that certain situations may require immediate police intervention to protect the investigation or the administration of justice. In such exceptional circumstances, issuing a notice may defeat the very purpose of the investigation.

Some of the common situations where the police may arrest without first issuing a Section 35(3) notice are discussed below.

1. Risk of the Accused Absconding

If the Investigating Officer has credible material suggesting that the accused is likely to flee from justice, immediate arrest may become necessary.

This may arise where the accused:

has no fixed place of residence;
has previously evaded investigation;
is attempting to leave the country;
has gone into hiding after learning about the FIR; or
is deliberately avoiding contact with the police.

In such cases, issuing a notice may prove ineffective because there is a genuine possibility that the accused will not appear before the Investigating Officer.

Illustration:
A person accused of a financial fraud books an international flight immediately after the FIR is registered and begins liquidating assets. The Investigating Officer receives credible information that the accused intends to leave India. In these circumstances, immediate arrest may be justified without first issuing a Section 35(3) notice.

2. Risk of Destruction or Tampering with Evidence

One of the principal reasons for arrest is to preserve the integrity of the investigation.

If there is a reasonable apprehension that the accused may destroy documents, erase electronic records, delete mobile phone data, manipulate financial transactions, or conceal material evidence, the police may conclude that issuing a notice would jeopardise the investigation.

This is particularly relevant in cases involving:

cybercrime;
financial and economic offences;
forgery;
digital evidence;
corporate fraud; and
offences involving electronic communication.

The apprehension, however, must be based on objective material and not on mere speculation.

3. Risk of Influencing or Threatening Witnesses

The criminal justice system depends upon witnesses being able to speak freely and truthfully.

Where the Investigating Officer has reasonable grounds to believe that the accused may:

intimidate witnesses;
induce witnesses to change their statements;
threaten the complainant;
offer illegal inducements; or
otherwise interfere with the investigation,

immediate arrest may become necessary to ensure a fair investigation.

For example, if the accused has already contacted witnesses and attempted to persuade them to withdraw their statements, the police need not first issue a Section 35(3) notice before taking appropriate action.

4. Repeated Non-Cooperation with the Investigation

Section 35(3) is founded on the assumption that the person will cooperate with the investigation.

Where the accused repeatedly refuses to cooperate, ignores lawful directions, fails to appear despite being called, provides false information, or deliberately obstructs the investigation, the Investigating Officer may conclude that a notice has become ineffective.

In such circumstances, arrest may be justified because the investigation cannot progress through voluntary cooperation.

Illustration:
Suppose the police issue a Section 35(3) notice requiring the accused to appear on three different occasions. Each time, the accused fails to appear without providing any satisfactory explanation and also refuses to produce documents relevant to the investigation. The Investigating Officer may then record these facts and consider whether arrest has become necessary under Section 35.

5. Other Statutory Grounds Necessitating Arrest

Apart from the situations discussed above, immediate arrest may also be justified where it is necessary to:

prevent the commission of another offence;
recover incriminating articles or stolen property;
carry out lawful custodial interrogation where genuinely required;
ensure the accused’s presence before the court; or
comply with any other statutory requirement recognised under Section 35 of the BNSS.

The Investigating Officer must evaluate each case on its own facts rather than follow a routine practice of arrest.

Judicial Approach

The Supreme Court has consistently held that the existence of the power to arrest does not automatically justify its exercise. Even where the law permits arrest without a warrant, the Investigating Officer must record reasons demonstrating why arrest was necessary in the particular case.

Conversely, where circumstances genuinely establish the need for immediate arrest—such as the risk of absconding, destruction of evidence, witness intimidation, or persistent non-cooperation—the police are not expected to issue a Section 35(3) notice merely as a procedural formality.

A Section 35(3) BNSS notice is the general rule where investigation can proceed through the accused’s cooperation. However, the law recognises that certain exceptional situations demand immediate arrest to protect the investigation and the administration of justice. The critical question is not whether the police possess the power to arrest, but whether the facts of the case objectively demonstrate that arrest is necessary, proportionate, and legally justified.

Can the Police Arrest Without Issuing a Section 35(3) BNSS Notice?

Yes. The police can arrest a person without first issuing a notice under Section 35(3) of the BNSS, but only in limited circumstances where the law permits immediate arrest. A Section 35(3) notice is a statutory safeguard against unnecessary arrests—it is not an absolute bar on the police’s power to arrest.

The key consideration is whether the conditions for arrest under Section 35(1) of the BNSS are satisfied. If the Investigating Officer concludes, based on objective facts and recorded reasons, that arrest is necessary for the purposes recognised by law, the police may proceed to arrest without first issuing a notice of appearance.

In other words, Section 35(3) applies only where arrest is not immediately necessary. Where arrest is justified under the statutory framework, the requirement of issuing a notice does not arise.

1. Exceptional Circumstances Requiring Immediate Arrest

Every criminal investigation is different. While many cases can be investigated through a notice of appearance, certain situations demand immediate police intervention to protect the investigation or ensure the administration of justice.

If issuing a notice would defeat the purpose of the investigation or allow the accused to interfere with the process, the Investigating Officer may lawfully arrest the person without first issuing a Section 35(3) notice.

However, the decision must be based on objective facts and recorded reasons, not on routine practice or administrative convenience.

2. Risk of Absconding

One of the most common grounds for immediate arrest is the likelihood that the accused may evade the investigation or escape the jurisdiction of the court.

A notice under Section 35(3) presumes that the person will voluntarily appear before the Investigating Officer. If there is credible material showing that the accused is unlikely to do so, issuing a notice may serve no practical purpose.

Examples include situations where the accused:

has gone into hiding after learning about the FIR;
has no fixed residence or identity;
is making arrangements to leave India;
has previously evaded police investigation; or
is deliberately avoiding service of legal notices.

In such circumstances, immediate arrest may be necessary to secure the accused’s presence and prevent them from absconding.

3. Risk of Destruction or Tampering with Evidence

Another recognised ground for immediate arrest is the possibility that the accused may destroy, conceal, alter, or fabricate evidence.

Modern criminal investigations frequently involve electronic evidence such as:

mobile phones;
laptops;
CCTV recordings;
emails;
cloud storage;
bank records; and
digital communications.

If there is a reasonable apprehension that the accused may delete data, destroy documents, transfer assets, or otherwise interfere with evidence, the Investigating Officer may conclude that delaying arrest by issuing a notice would seriously prejudice the investigation.

The apprehension must be supported by facts and circumstances. Mere suspicion or speculation is not sufficient.

4. Risk of Influencing or Threatening Witnesses

The fairness of a criminal investigation depends upon witnesses being able to give truthful statements without fear or pressure.

Where the Investigating Officer has credible information that the accused is likely to:

threaten the complainant;
intimidate witnesses;
offer inducements to change their statements;
influence co-accused; or
otherwise interfere with the investigation,

the police may proceed with immediate arrest instead of issuing a notice.

For example, if witnesses report that the accused has contacted them and warned them against cooperating with the police, the Investigating Officer may reasonably conclude that immediate arrest is necessary to preserve the integrity of the investigation.

5. Repeated Non-Cooperation with the Investigation

Section 35(3) is founded on the expectation that the person will cooperate with the investigation. Where the accused repeatedly refuses to do so, the justification for issuing or continuing with a notice disappears.

Repeated non-cooperation may include:

ignoring earlier notices or summons;
failing to appear without sufficient cause;
refusing to produce documents or electronic devices lawfully required for investigation;
providing false or misleading information; or
deliberately obstructing investigative proceedings.

If voluntary cooperation is no longer possible, the Investigating Officer may record these circumstances and consider arrest in accordance with Section 35.

Practical Illustrations

Example 1 – Risk of Absconding

A person accused of cheating learns that an FIR has been registered and immediately books an international flight. The Investigating Officer receives credible information that the accused intends to leave India before appearing before the police. In these circumstances, immediate arrest may be justified without issuing a Section 35(3) notice.

Example 2 – Destruction of Digital Evidence

A suspect in a cyber fraud case begins deleting emails, wiping mobile phone data, and transferring cryptocurrency after becoming aware of the investigation. Since valuable evidence is at risk of being destroyed, the police may decide that immediate arrest is necessary.

Example 3 – Witness Intimidation

In a criminal breach of trust case, witnesses inform the police that the accused has threatened them with consequences if they cooperate with the investigation. To prevent further interference, the Investigating Officer may lawfully arrest the accused without first issuing a notice.

Example 4 – Persistent Non-Cooperation

The police issue multiple notices requiring the accused to appear for investigation. The accused repeatedly fails to appear, refuses to provide relevant documents, and ignores lawful directions. Continued non-compliance may justify arrest, provided the statutory requirements are fulfilled.

Judicial Perspective

The Supreme Court has repeatedly clarified that the power to arrest is not synonymous with the duty to arrest. At the same time, the Court has recognised that where legally recognised grounds exist—such as the likelihood of absconding, destruction of evidence, intimidation of witnesses, or persistent non-cooperation—the police are entitled to arrest without first issuing a Section 35(3) notice.

The legality of such an arrest ultimately depends on whether the Investigating Officer can demonstrate that immediate arrest was genuinely necessary and supported by reasons recorded in accordance with the BNSS.

A Section 35(3) BNSS notice is intended to replace unnecessary arrests, not necessary ones. If the facts of the case objectively establish that the accused is likely to abscond, destroy evidence, influence witnesses, or repeatedly obstruct the investigation, the police may lawfully arrest the person without first issuing a notice. However, such an arrest must always satisfy the statutory requirements of Section 35 and remain subject to judicial scrutiny.

Can the Police Arrest After Issuing a Section 35(3) BNSS Notice?

Yes. The issuance of a Section 35(3) BNSS notice does not permanently bar the police from arresting a person. A notice of appearance is a procedural safeguard intended to avoid unnecessary arrests at the initial stage of the investigation. It does not grant immunity from arrest if circumstances subsequently justify the exercise of the police’s power under Section 35 of the BNSS.

However, the police cannot arrest a person merely because a Section 35(3) notice has already been issued. If the person has complied with the notice and cooperated with the investigation, the Investigating Officer must demonstrate that arrest has become necessary due to subsequent developments and must satisfy the statutory safeguards prescribed under the BNSS.

Arrest May Follow Non-Compliance with the Notice

The most common circumstance in which arrest may follow the issuance of a Section 35(3) notice is non-compliance by the recipient.

A person who receives the notice is legally required to:

appear before the Investigating Officer on the specified date and time;
cooperate with the investigation;
answer lawful questions; and
produce documents or other material lawfully required for investigation.

If the person deliberately ignores the notice, repeatedly fails to appear without reasonable cause, or obstructs the investigation, the Investigating Officer may conclude that the purpose of issuing the notice has failed.

For example, if an accused receives multiple notices but continuously avoids appearing before the police despite having no valid explanation, the Investigating Officer may consider arrest to secure the person’s presence and ensure the progress of the investigation.

Arrest Requires Recording of Reasons

Even where the person fails to comply with the notice, arrest is not automatic.

Before making an arrest, the Investigating Officer must record specific reasons explaining why arrest has become necessary. These reasons should demonstrate that the statutory grounds for arrest exist and that the objectives of the investigation cannot be achieved through less restrictive measures.

Recording reasons serves several important purposes:

it ensures transparency in the exercise of police powers;
it enables judicial scrutiny of the arrest;
it protects individuals against arbitrary deprivation of liberty; and
it promotes accountability within the criminal justice system.

A mechanical statement such as “the accused did not cooperate” may not be sufficient unless supported by facts showing how the investigation has been prejudiced by the person’s conduct.

Statutory Requirements Must Still Be Satisfied

A person’s failure to comply with a Section 35(3) notice does not, by itself, authorise arrest.

The Investigating Officer must still satisfy the requirements of Section 35 of the BNSS, including demonstrating that arrest is necessary for one or more legally recognised purposes, such as:

preventing the accused from absconding;
ensuring a proper and effective investigation;
preventing destruction or tampering with evidence;
preventing intimidation or influence over witnesses;
preventing the commission of further offences; or
ensuring the accused’s presence before the court.

Unless one or more of these statutory grounds exist, arrest should not be made merely because the person failed to respond to the notice.

What If the Person Has Fully Cooperated?

Where the recipient has:

appeared before the Investigating Officer whenever required;
answered lawful questions;
supplied relevant documents or electronic records;
not attempted to influence witnesses; and
not interfered with the investigation,

the police should ordinarily not arrest the person unless fresh circumstances arise that make arrest genuinely necessary.

For instance, if new evidence later reveals that the accused has begun threatening witnesses or attempting to destroy electronic evidence, the Investigating Officer may reassess the necessity of arrest. In such a case, arrest may be lawful, provided the reasons are properly recorded and the statutory conditions under Section 35 are fulfilled.

Practical Illustration

Suppose an FIR is registered alleging cheating punishable with imprisonment of up to seven years. The Investigating Officer issues a Section 35(3) notice directing the accused to appear for investigation.

Scenario 1 – Continued Cooperation

The accused appears on every date, provides all requested financial records, answers the Investigating Officer’s questions, and remains available throughout the investigation.

In these circumstances, there may be no justification for arrest because the investigation is progressing without any obstruction.

Scenario 2 – Subsequent Non-Cooperation

After initially appearing before the police, the accused stops responding to notices, refuses to produce important documents, and is found attempting to influence witnesses.

The Investigating Officer records these developments in the case diary and concludes that arrest has become necessary to ensure a fair investigation. In such circumstances, the police may lawfully arrest the accused despite having previously issued a Section 35(3) notice.

Judicial Perspective

The Supreme Court has consistently held that a Section 35(3) notice is intended to protect personal liberty, not to create immunity from arrest. If a person complies with the notice and cooperates with the investigation, arrest should ordinarily be avoided. However, where subsequent events demonstrate that the statutory grounds for arrest have arisen, the police retain the power to arrest, provided the decision is supported by recorded reasons and complies with the requirements of Section 35.

Receiving a Section 35(3) BNSS notice does not mean that arrest is permanently ruled out. If the recipient fails to comply with the notice, obstructs the investigation, or subsequent circumstances make arrest legally necessary, the police may proceed with arrest. However, such arrest is not automatic. The Investigating Officer must record reasons, satisfy the statutory conditions under Section 35, and ensure that the decision to arrest can withstand judicial scrutiny.

Rights of a Person Receiving a Section 35(3) BNSS Notice

Receiving a Section 35(3) BNSS notice does not mean that a person loses their legal or constitutional rights. On the contrary, the provision itself is intended to protect personal liberty by allowing the investigation to proceed without unnecessary arrest. While the recipient is under a legal obligation to cooperate with the investigation, they also enjoy several important rights that safeguard them against arbitrary police action.

Understanding these rights is essential, as it enables a person to cooperate with the investigation while ensuring that the investigation remains fair, lawful, and consistent with the Constitution.

1. Right to Know the Nature of the Allegations

A person who receives a Section 35(3) notice has the right to know why they are being called by the police.

Although the notice itself may briefly mention the FIR number, police station, and relevant penal provisions, the recipient is entitled to understand the nature of the allegations under investigation. This knowledge enables them to prepare an appropriate response, preserve relevant evidence, and seek legal advice.

In practice, the recipient should ascertain:

the FIR number;
the police station conducting the investigation;
the offences alleged;
the factual allegations against them; and
the purpose for which their appearance is required.

Being informed of the allegations is an essential component of a fair investigation and helps prevent arbitrary exercise of police powers.

2. Right to Consult a Lawyer

One of the most important safeguards available to a person receiving a Section 35(3) notice is the right to consult and be defended by a legal practitioner of their choice.

This right flows from Article 22(1) of the Constitution of India and is recognised throughout the criminal justice process.

A lawyer can assist the recipient by:

explaining the allegations and applicable legal provisions;
advising on documents and evidence to be produced;
ensuring that the person’s legal rights are protected during the investigation;
advising on whether anticipatory bail or any other legal remedy is required; and
monitoring the legality of police action.

Although the police may question the person during the investigation, consulting a lawyer before appearing before the Investigating Officer is both lawful and advisable.

3. Right to Protection Against Arbitrary Arrest

The very purpose of Section 35(3) is to ensure that arrest is not made routinely or mechanically.

If the recipient complies with the notice and cooperates with the investigation, the police should ordinarily not arrest them unless circumstances subsequently arise that satisfy the statutory requirements under Section 35 of the BNSS.

The Investigating Officer cannot arrest a person merely because an FIR has been registered or because they have appeared pursuant to the notice. Any decision to arrest must be supported by legally recognised grounds and recorded reasons.

This safeguard protects individuals from unnecessary deprivation of liberty during the investigation.

4. Constitutional Safeguards Under Articles 21 and 22

A person receiving a Section 35(3) notice continues to enjoy the full protection of the Constitution.

Article 21 guarantees that no person shall be deprived of their life or personal liberty except according to a procedure established by law. The Supreme Court has repeatedly held that such procedure must be fair, just, and reasonable.

Similarly, Article 22 provides important procedural safeguards against unlawful arrest and detention, including the right to consult a legal practitioner and other protections available once a person is arrested.

Section 35(3) itself is a reflection of these constitutional principles. Instead of permitting routine arrests, it requires the police to adopt a less restrictive measure wherever the investigation can be effectively conducted through the person’s cooperation.

5. Right to Challenge an Illegal Arrest

If the police arrest a person in violation of the statutory safeguards contained in Section 35 of the BNSS or disregard the protection afforded by Section 35(3), the person has the right to seek judicial intervention.

Depending on the facts of the case, appropriate legal remedies may include:

applying for anticipatory bail or regular bail;
challenging the legality of the arrest before the appropriate court;
seeking appropriate constitutional remedies where fundamental rights have been violated; or
relying upon the police’s non-compliance with statutory safeguards while seeking relief before the court.

Courts closely examine whether the Investigating Officer complied with the procedural requirements governing arrest. Failure to follow the statutory safeguards may have significant consequences while considering the legality of the arrest and the grant of bail.

Rights Must Be Exercised Responsibly

While the law provides important protections, these rights are accompanied by corresponding responsibilities.

A person receiving a Section 35(3) notice should:

appear before the Investigating Officer as directed;
cooperate with the investigation;
provide truthful information;
preserve relevant evidence; and
avoid any conduct that may obstruct the investigation or influence witnesses.

The protection offered by Section 35(3) is intended to facilitate a fair investigation—not to shield a person from lawful inquiry.

A Section 35(3) BNSS notice does not place a person outside the protection of the law—it reinforces those protections. The recipient has the right to know the allegations, consult a lawyer, be protected against arbitrary arrest, and invoke the constitutional guarantees of Articles 21 and 22. If the police disregard these safeguards and make an unlawful arrest, the person has the right to challenge the legality of that action before the appropriate court. At the same time, the recipient must honour their legal obligation to cooperate with the investigation, as responsible compliance is the foundation upon which these statutory protections operate.

Duties After Receiving a Section 35(3) BNSS Notice

A Section 35(3) BNSS notice is not merely an intimation from the police—it is a statutory direction requiring the recipient to appear before the Investigating Officer and cooperate with the investigation. While the provision protects individuals from unnecessary arrest, it also imposes certain legal obligations.

Failure to comply with these obligations may lead the Investigating Officer to conclude that voluntary cooperation is no longer possible, which may, in appropriate cases, justify arrest under Section 35 of the BNSS.

The following are the key duties of a person who receives a Section 35(3) notice.

1. Appear Before the Investigating Officer on Time

The foremost duty is to appear before the Investigating Officer at the date, time, and place specified in the notice.

Ignoring the notice, arriving without reasonable justification on a different date, or repeatedly seeking unnecessary adjournments may be viewed as non-cooperation. If there is a genuine reason—such as a medical emergency or unavoidable circumstances—that prevents attendance, the recipient should promptly inform the Investigating Officer and, wherever possible, provide supporting documents.

Timely appearance demonstrates respect for the legal process and significantly reduces the likelihood of coercive action.

2. Cooperate with the Investigation

The purpose of a Section 35(3) notice is to enable the police to conduct a fair and effective investigation without resorting to immediate arrest.

Accordingly, the recipient is expected to cooperate by:

answering lawful questions asked by the Investigating Officer;
providing information relevant to the investigation;
participating in lawful investigative procedures when required; and
remaining available for further questioning if reasonably necessary.

Cooperation, however, does not mean surrendering one’s legal rights. A person should cooperate fully while also exercising their constitutional and statutory protections, including the right to seek legal advice.

3. Produce Relevant Documents and Other Material

During the investigation, the police may lawfully require the production of documents, records, electronic devices, or other material relevant to the allegations under investigation.

Depending on the nature of the case, this may include:

bank statements;
contracts or agreements;
invoices and financial records;
emails and electronic communications;
mobile phones, laptops, or storage devices; or
any other documents relevant to the investigation.

The recipient should comply with lawful requests made in accordance with the BNSS. Deliberately concealing or withholding material evidence may adversely affect the investigation and may have legal consequences.

4. Avoid Making False or Misleading Statements

A person appearing before the Investigating Officer should always provide truthful and accurate information.

Attempting to:

mislead the investigating agency;
provide fabricated documents;
conceal material facts;
falsely implicate another person; or
deliberately make contradictory statements,

may weaken the person’s credibility and, depending on the circumstances, expose them to additional legal consequences.

If the recipient does not know the answer to a particular question or is uncertain about a fact, it is generally preferable to state so rather than speculate or make inaccurate statements.

5. Preserve Electronic and Documentary Evidence

In today’s digital age, electronic evidence often plays a crucial role in criminal investigations.

After receiving a Section 35(3) notice, the recipient should take immediate steps to preserve all potentially relevant evidence, including:

WhatsApp chats and text messages;
emails;
call records;
photographs and videos;
CCTV footage;
GPS or location records;
financial transactions; and
documents stored on computers, mobile phones, or cloud platforms.

Deleting messages, formatting electronic devices, destroying documents, or attempting to erase digital records after becoming aware of the investigation may be viewed as an attempt to interfere with the administration of justice. Such conduct can strengthen the prosecution’s case for arrest and may also result in additional legal consequences.

Practical Tips for Responding to a Section 35(3) Notice

If you receive a Section 35(3) notice, you should:

carefully read the notice and note the date, time, and place of appearance;
obtain a copy of the FIR and understand the allegations;
consult an experienced criminal lawyer before appearing before the Investigating Officer;
carry any documents specifically requested in the notice;
preserve all relevant physical and electronic evidence;
remain polite and cooperative during the investigation; and
keep copies of all notices, documents submitted, and records of your appearances before the police.

These practical steps not only demonstrate cooperation but also help protect your legal interests throughout the investigation.

A Section 35(3) BNSS notice gives a person an opportunity to cooperate with the investigation without being subjected to immediate arrest. To retain the benefit of this statutory safeguard, the recipient must appear before the Investigating Officer as directed, cooperate honestly, produce relevant documents when lawfully required, avoid making false or misleading statements, and preserve all potentially relevant evidence. Responsible compliance with these duties strengthens the integrity of the investigation and reduces the likelihood of coercive measures becoming necessary.

What Happens if You Ignore a Section 35(3) BNSS Notice?

Ignoring a Section 35(3) BNSS notice is a serious mistake. Although the notice is intended to protect individuals from unnecessary arrest, it also imposes a legal obligation to appear before the Investigating Officer and cooperate with the investigation.

A person who deliberately ignores the notice or repeatedly fails to cooperate may lose the benefit of this statutory safeguard. While non-compliance does not automatically result in arrest, it significantly increases the likelihood that the Investigating Officer will conclude that voluntary cooperation is no longer possible.

The legal and practical consequences of ignoring a Section 35(3) notice are explained below.

1. The Police May Record Non-Cooperation

When a person fails to comply with a Section 35(3) notice, the Investigating Officer will ordinarily record this fact in the case diary and other investigation records.

The officer may note that:

the accused failed to appear on the specified date;
no satisfactory explanation was provided;
repeated notices were ignored;
documents requested during the investigation were not produced; or
the accused deliberately obstructed the investigation.

These records become part of the investigation file and may later be produced before the court whenever the legality of police action or the conduct of the accused becomes relevant.

For this reason, if a person is genuinely unable to attend—for example, due to illness, travel restrictions, or any other unavoidable circumstance—they should immediately inform the Investigating Officer and, wherever possible, provide supporting documents.

2. Arrest Becomes More Likely

One of the principal objectives of Section 35(3) is to secure the accused’s cooperation without resorting to arrest.

However, if the accused repeatedly ignores the notice or refuses to participate in the investigation, the Investigating Officer may reasonably conclude that a notice is no longer sufficient to ensure their presence.

In such circumstances, the officer may record reasons showing that arrest has become necessary under Section 35 of the BNSS—for example, to:

secure the accused’s presence during the investigation;
prevent further obstruction of the investigation;
ensure the collection of evidence; or
prevent the accused from absconding.

It is important to understand that the arrest is not a punishment for ignoring the notice. Rather, the accused’s conduct may create circumstances in which arrest becomes legally justified under the statutory framework.

3. Impact on Anticipatory Bail

Ignoring a Section 35(3) notice may also affect an application for anticipatory bail.

While every case is decided on its own facts, courts generally consider the conduct of the accused while exercising their discretionary jurisdiction.

If the prosecution demonstrates that the accused:

deliberately ignored repeated notices;
refused to cooperate with the investigation;
failed to appear without sufficient cause; or
obstructed the investigation,

the court may view such conduct as an indication that the accused is unwilling to cooperate with the investigation.

Conversely, where an accused has consistently appeared before the Investigating Officer, produced relevant documents, and fully cooperated with the investigation, this conduct often supports the argument that custodial arrest is unnecessary.

Although non-compliance does not automatically result in rejection of anticipatory bail, it may become an important factor considered by the court while deciding whether discretionary protection should be granted.

4. Adverse Inference During the Investigation

Failure to respond to a lawful notice may also influence the manner in which the investigation progresses.

Repeated non-cooperation may lead the Investigating Officer to infer that the accused is attempting to:

delay the investigation;
avoid questioning;
conceal relevant information;
destroy evidence; or
evade the legal process.

Such conclusions cannot substitute proof of guilt, nor can a person be convicted merely because they failed to comply with a notice. However, persistent non-cooperation may influence investigative decisions, including the necessity of arrest, recovery proceedings, or further investigative measures.

Ultimately, the court will independently evaluate the evidence during trial, and any adverse inference must be supported by legally admissible material.

Practical Illustration

Suppose the police issue a Section 35(3) notice requiring an accused to appear on a specified date.

Scenario A – Responsible Compliance

The accused appears before the Investigating Officer, answers lawful questions, submits the requested documents, and continues to cooperate throughout the investigation.

In such circumstances, the investigation is likely to proceed without the need for arrest unless new facts subsequently justify custodial action.

Scenario B – Repeated Non-Compliance

The accused ignores three successive notices, does not communicate any valid reason for absence, and refuses to provide documents relevant to the investigation.

The Investigating Officer records these facts, concludes that voluntary cooperation has failed, and determines that arrest has become necessary to ensure the proper conduct of the investigation.

Can You Ignore the Notice for Genuine Reasons?

Yes, there may be situations where immediate compliance is genuinely impossible.

For example:

serious illness;
hospitalisation;
unavoidable travel;
natural calamities; or
other exceptional circumstances.

In such cases, the recipient should promptly communicate the reason to the Investigating Officer, request another date if necessary, and provide supporting documents wherever possible.

Courts generally distinguish between genuine inability to appear and deliberate refusal to cooperate.

A Section 35(3) BNSS notice should never be ignored without a valid reason. Failure to comply may lead the Investigating Officer to record non-cooperation, increase the likelihood of arrest, adversely affect an anticipatory bail application, and influence the course of the investigation. On the other hand, timely appearance and genuine cooperation demonstrate respect for the legal process and reinforce the statutory protection against unnecessary arrest.

Difference Between a Section 35(3) BNSS Notice and an Arrest

Many people mistakenly assume that receiving a Section 35(3) BNSS notice is equivalent to being arrested. This misconception often causes unnecessary panic. In reality, a notice under Section 35(3) and an arrest are two entirely different legal concepts with different purposes and consequences.

A Section 35(3) notice is a statutory mechanism that enables the police to continue the investigation without immediately depriving a person of their liberty. An arrest, on the other hand, involves taking the person into legal custody because the Investigating Officer has concluded that custodial intervention is necessary under the law.

The following table highlights the key differences:

Section 35(3) BNSS Notice	Arrest
A written notice directing the person to appear before the Investigating Officer.	A legal process by which the police take a person into custody.
Investigation continues while the person remains at liberty.	Personal liberty is immediately restricted by police custody or judicial custody.
The recipient is required to appear on the specified date, time, and place.	The person is physically taken into custody and cannot leave without lawful authority.
No detention takes place merely because the notice is issued.	Detention is an inherent consequence of arrest.
The law expects the person to cooperate voluntarily with the investigation.	The arrested person may need to apply for regular or statutory bail, depending on the circumstances.
Issued where immediate arrest is not considered necessary under Section 35 of the BNSS.	Resorted to only when the statutory grounds for arrest are satisfied.
Does not, by itself, affect the person’s freedom of movement.	Restricts the person’s freedom of movement until released in accordance with law.
Intended to reduce unnecessary arrests while ensuring cooperation.	Intended to secure the investigation, prevent interference with evidence or witnesses, prevent absconding, or achieve other lawful investigative objectives.
Compliance with the notice ordinarily protects the person from unnecessary arrest unless circumstances subsequently change.	Once arrested, the person acquires the legal rights available to an arrested person, including the right to be produced before the Magistrate within the prescribed time and to seek bail.

The Fundamental Difference

The fundamental distinction lies in personal liberty.

A Section 35(3) notice allows the investigation to proceed while respecting the individual’s freedom. The recipient continues to live, work, travel, and carry on daily activities, subject only to the obligation of appearing before the Investigating Officer and cooperating with the investigation.

An arrest, by contrast, involves a direct interference with personal liberty. The individual is placed under the control of the investigating agency and may remain in police or judicial custody until released in accordance with law.

Why This Difference Matters

Understanding this distinction is crucial because many recipients mistakenly treat a Section 35(3) notice as though they have already been arrested. This often results in unnecessary panic or, conversely, in ignoring the notice altogether.

Neither approach is correct.

A Section 35(3) notice should be viewed as a legal opportunity to cooperate with the investigation without being subjected to immediate custody. If the recipient complies with the notice and the statutory grounds for arrest do not subsequently arise, the investigation can often proceed without the need for custodial action.

A Section 35(3) BNSS notice is not an arrest. It is a statutory safeguard that seeks to balance effective criminal investigation with the constitutional protection of personal liberty. While a notice requires cooperation and appearance before the police, an arrest results in detention and significant legal consequences. Understanding this distinction helps individuals respond appropriately to a notice and avoid unnecessary legal complications.

Supreme Court Guidelines on Section 35(3) BNSS Notice

Although Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is a relatively new statutory provision, the legal principles governing it have been developed over several years through judicial decisions on Section 41A of the Code of Criminal Procedure, 1973 (CrPC) and have now been reaffirmed under the BNSS.

The Supreme Court has consistently held that the power to arrest is not synonymous with the necessity to arrest. Arrest is a serious interference with personal liberty and cannot be made routinely merely because the police possess the statutory power to do so.

The two most significant decisions shaping the law are Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. Central Bureau of Investigation (2026).

1. Arnesh Kumar v. State of Bihar – The Foundation of Modern Arrest Jurisprudence

The Supreme Court’s decision in Arnesh Kumar v. State of Bihar fundamentally changed the approach towards arrests in offences punishable with imprisonment of up to seven years.

Before this judgment, it was common for investigating agencies to arrest the accused immediately after registration of an FIR, particularly in matrimonial and other cognizable offences. The Court observed that such routine arrests had become a matter of concern and often resulted in unnecessary deprivation of liberty.

To address this problem, the Supreme Court held that:

the existence of the power to arrest does not automatically justify its exercise;
the Investigating Officer must independently assess whether arrest is actually necessary;
arrest should be based on the statutory conditions governing arrest and not on mechanical practice; and
where immediate arrest is not required, the police should ordinarily issue a notice of appearance instead of taking the accused into custody.

These directions transformed Section 41A of the CrPC from a procedural formality into an important safeguard against arbitrary arrest.

Although Arnesh Kumar was decided under the CrPC, its underlying constitutional principles continue to guide the interpretation of Section 35 of the BNSS.

2. Satender Kumar Antil v. Central Bureau of Investigation (2026) – Reaffirming the Position Under the BNSS

After the enactment of the BNSS, the Supreme Court revisited the law governing arrests in Satender Kumar Antil v. Central Bureau of Investigation, 2026 INSC 115.

The Court recognised that Section 35(3) of the BNSS substantially continues the legislative policy underlying the earlier Section 41A CrPC.

Most importantly, the Supreme Court clarified that:

for offences punishable with imprisonment of up to seven years, issuance of a notice under Section 35(3) is the general rule;
arrest is the exception and must be justified by the statutory conditions contained in Section 35;
police officers cannot bypass the statutory safeguard merely because an FIR has been registered; and
if arrest is considered necessary, the Investigating Officer must be able to justify that decision on legally recognised grounds.

The judgment reinforces that Section 35(3) is not an empty procedural requirement but an important statutory safeguard intended to protect personal liberty while ensuring effective investigation.

3. Constitutional Philosophy Behind Section 35(3)

The Supreme Court’s interpretation of Section 35(3) is deeply rooted in the constitutional guarantee of personal liberty under Article 21.

Article 21 provides that no person shall be deprived of life or personal liberty except according to a procedure established by law. Over the years, the Supreme Court has consistently held that this procedure must be fair, just, and reasonable.

Since arrest directly affects an individual’s liberty, dignity, reputation, employment, and family life, the investigating agency must adopt the least restrictive lawful measure capable of achieving the objectives of the investigation.

Section 35(3) embodies this constitutional philosophy by permitting investigation through a notice of appearance wherever custodial arrest is unnecessary.

The emphasis is therefore on balancing two competing public interests:

protecting the individual’s fundamental right to personal liberty; and
ensuring that criminal investigations remain effective and fair.

4. Arrest Is Not Mandatory Merely Because an FIR Exists

One of the most important principles emerging from the Supreme Court’s decisions is that registration of an FIR does not automatically require arrest.

The Court has repeatedly explained that there is a clear distinction between:

the power to arrest, which is conferred by statute; and
the need to arrest, which must be justified on the facts of each case.

Accordingly, the Investigating Officer must examine whether arrest is genuinely necessary for purposes such as:

ensuring a proper investigation;
preventing destruction of evidence;
preventing intimidation of witnesses;
preventing the accused from absconding; or
securing the accused’s presence before the court.

If these objectives can be achieved through the accused’s voluntary cooperation, Section 35(3) requires the police to ordinarily issue a notice of appearance instead of making an immediate arrest.

5. Police Accountability and Judicial Scrutiny

Another significant feature of the Supreme Court’s jurisprudence is the emphasis on accountability in the exercise of arrest powers.

Investigating Officers are expected to exercise independent judgment rather than follow routine practices. Whenever arrest is made in a case where Section 35(3) applies, the decision must be supported by recorded reasons demonstrating why arrest became necessary.

These recorded reasons are not mere internal formalities. They enable courts to examine whether:

the statutory requirements of Section 35 were satisfied;
the police exercised their discretion lawfully;
the arrest was proportionate to the needs of the investigation; and
the constitutional guarantee of personal liberty was respected.

Where these safeguards are ignored, courts may take such non-compliance into account while considering the legality of the arrest, bail applications, or other appropriate relief.

Key Judicial Principles

The Supreme Court’s decisions establish the following principles governing Section 35(3) BNSS:

Arrest is not the automatic consequence of an FIR.
The power to arrest is different from the necessity to arrest.
For offences punishable with imprisonment of up to seven years, a Section 35(3) notice is ordinarily the rule, while arrest is the exception.
The Investigating Officer must record legally sustainable reasons before dispensing with the statutory safeguard of a notice or before arresting a person who has complied with it.
Personal liberty under Article 21 remains the guiding constitutional value throughout the investigation.

The Supreme Court has transformed the law relating to arrests from a power-centric approach to a necessity-based approach. Through Arnesh Kumar and Satender Kumar Antil, the Court has made it clear that Section 35(3) BNSS is not a mere procedural formality but a substantive safeguard protecting personal liberty. The guiding principle is simple yet profound: the police may arrest where the law genuinely requires it, but they cannot arrest merely because they have the power to do so.

Practical Advice From a Criminal Lawyer

Receiving a Section 35(3) BNSS notice can be stressful, particularly if you have never been involved in a criminal investigation before. Many people mistakenly assume that receiving such a notice means they will inevitably be arrested or convicted. That is not the law.

In my experience as a criminal lawyer, the manner in which a person responds to a Section 35(3) notice often has a significant impact on the course of the investigation. A calm, informed, and legally sound approach is always preferable to panic or avoidance.

The following practical guidance may help you protect your legal rights while fulfilling your statutory obligations.

1. Don’t Panic

The first and most important advice is not to panic.

A Section 35(3) notice is not an arrest warrant. It is a statutory notice requiring your appearance before the Investigating Officer because your presence is considered necessary for the investigation.

Receiving the notice does not mean that you have been found guilty or that arrest is inevitable. In many cases, the investigation proceeds entirely through cooperation without any custodial arrest.

Stay calm, read the notice carefully, and understand what is being asked of you.

2. Verify the FIR and Allegations

Before appearing before the police, you should ascertain the details of the case.

Verify:

the FIR number;
the police station;
the sections of law invoked;
the nature of the allegations; and
whether you have been named as an accused or are being called for clarification during the investigation.

Understanding the allegations allows you to prepare appropriately and prevents unnecessary confusion during questioning.

3. Consult a Criminal Lawyer Promptly

Do not attend the investigation without first obtaining legal advice.

An experienced criminal lawyer can:

explain the allegations against you;
assess whether the notice has been issued in accordance with law;
advise you regarding documents or evidence that may be required;
evaluate whether anticipatory bail or any other legal remedy is advisable; and
help you avoid making statements that may unnecessarily complicate your legal position.

Seeking legal advice at the earliest stage often prevents avoidable mistakes that become difficult to correct later.

4. Attend the Investigation as Directed

Unless there is a genuine and unavoidable reason, appear before the Investigating Officer on the date, time, and place mentioned in the notice.

If you cannot attend because of illness, travel disruption, or another valid reason, immediately communicate the reason to the Investigating Officer and, wherever possible, provide supporting documents while requesting another date.

Ignoring the notice without sufficient cause may be treated as non-cooperation and could increase the likelihood of arrest.

5. Cooperate, But Do Not Make Unnecessary Admissions

Cooperation with the investigation is your legal obligation. However, cooperation does not mean making unnecessary admissions or volunteering information that has not been sought.

While interacting with the Investigating Officer:

answer lawful questions honestly;
provide documents that you are legally required to produce;
remain respectful and courteous;
avoid speculation or guesses if you do not know an answer; and
refrain from making statements simply to end the questioning quickly.

If a question has significant legal implications or you are unsure how to respond, seek advice from your lawyer before making any statement.

6. Keep Records of Every Appearance and Communication

Maintain a complete record of your interaction with the investigating agency.

This should include:

copies of the Section 35(3) notice;
dates and times of every appearance;
acknowledgements of attendance, where available;
copies of documents submitted;
emails, letters, or messages exchanged with the police; and
any requests made by the Investigating Officer.

Proper documentation may prove valuable if any dispute later arises regarding your cooperation with the investigation.

7. Consider Anticipatory Bail if There Is a Genuine Apprehension of Unlawful Arrest

Although Section 35(3) is intended to reduce unnecessary arrests, it does not eliminate the police’s statutory power to arrest where legally justified.

If there are credible reasons to believe that:

the police may disregard the statutory safeguards;
arrest is being threatened despite full cooperation;
the allegations are serious and custodial action appears likely; or
the facts of the case otherwise justify preventive relief,

you should immediately consult your lawyer regarding the possibility of applying for anticipatory bail before the appropriate court.

Whether anticipatory bail is advisable depends upon the facts of each case, the nature of the allegations, the applicable offences, and the stage of the investigation. It should never be sought as a routine measure, but neither should it be delayed where there is a genuine apprehension of unlawful or unnecessary arrest.

Common Mistakes to Avoid

Many people inadvertently worsen their legal position after receiving a Section 35(3) notice. Some common mistakes include:

ignoring the notice;
switching off mobile phones or becoming unreachable;
attempting to contact or influence witnesses;
deleting WhatsApp chats, emails, or other electronic records;
creating false documents or fabricated evidence;
relying solely on informal advice from friends or social media; and
appearing before the police without understanding the allegations or obtaining legal advice.

Avoiding these mistakes can significantly strengthen your legal position during the investigation.

Final Advice

A Section 35(3) BNSS notice should be treated as both a legal obligation and a legal opportunity. It allows you to cooperate with the investigation while remaining at liberty, provided you act responsibly and in accordance with the law.

Respond promptly, understand the allegations, seek timely legal advice, cooperate honestly, preserve all relevant evidence, and maintain proper records of every interaction with the investigating agency. These practical steps not only demonstrate respect for the legal process but also help protect your rights if any dispute regarding the investigation or arrest later arises.

Frequently Asked Questions (FAQs)

Q. Is a Section 35(3) BNSS notice compulsory before arrest?

Not in every case. A Section 35(3) BNSS notice is ordinarily required where the alleged offence is punishable with imprisonment of up to seven years and the Investigating Officer concludes that immediate arrest is not necessary. If the statutory grounds for immediate arrest exist—such as the risk of absconding, destruction of evidence, or influencing witnesses—the police may arrest without first issuing a notice.

Q. Is a Section 35(3) notice the same as an arrest warrant?

No. A Section 35(3) notice is not an arrest warrant. It is a written direction requiring a person to appear before the Investigating Officer and cooperate with the investigation. An arrest warrant, on the other hand, authorises the arrest of a person and is generally issued by a court in accordance with law.

Q. Can I ignore a Section 35(3) BNSS notice?

No. Ignoring a Section 35(3) notice without a valid reason is not advisable. Failure to appear may be treated as non-cooperation, increase the likelihood of arrest, adversely affect an anticipatory bail application, and influence the course of the investigation. If you are unable to attend due to genuine reasons, you should promptly inform the Investigating Officer and request another date.

Q. Can the police arrest me after issuing a Section 35(3) notice?

Yes. Issuing a notice does not permanently prevent arrest. If you fail to comply with the notice or if subsequent circumstances make arrest necessary—for example, because of witness intimidation, destruction of evidence, or repeated non-cooperation—the police may arrest you after satisfying the statutory requirements under Section 35 of the BNSS and recording appropriate reasons.

Q. Should I apply for anticipatory bail after receiving a Section 35(3) notice?

It depends on the facts of your case. Receiving a notice does not automatically mean that anticipatory bail is necessary. However, if there is a genuine apprehension that the police may arrest you despite your cooperation or may not follow the statutory safeguards, you should promptly consult an experienced criminal lawyer to assess whether an anticipatory bail application is appropriate.

Q. Can a Section 35(3) BNSS notice be challenged?

Yes, in appropriate cases. If the notice has been issued without jurisdiction, is contrary to the statutory provisions, or is being used for an improper purpose, the affected person may seek appropriate legal remedies before the competent court. The remedy depends on the facts of each case, and legal advice should be obtained before initiating any challenge.

Q. Can my lawyer accompany me during the investigation?

You have the constitutional right to consult a lawyer. While the investigation is conducted by the police and the lawyer cannot interfere with questioning, you may consult your lawyer before appearing and, subject to applicable legal principles and judicial directions, seek their presence in accordance with law. The precise extent of a lawyer’s presence during questioning depends on the facts of the case and the applicable legal framework.

Q. Is a Section 35(3) notice required in every criminal offence?

No. Section 35(3) is not applicable in every case. Whether a notice should be issued depends upon the nature of the offence, the maximum punishment prescribed, and whether the statutory grounds for immediate arrest under Section 35 exist. Each case must be assessed on its own facts.

Q. What if the offence is punishable with more than seven years’ imprisonment?

Where the alleged offence carries a punishment exceeding seven years, the statutory framework governing arrest is different. In such cases, the police may have broader powers to arrest without first issuing a Section 35(3) notice, subject to compliance with the BNSS and constitutional safeguards. However, even in these cases, the power of arrest must be exercised fairly, reasonably, and in accordance with law.

Q. How many times can the police call me under a Section 35(3) notice?

The BNSS does not prescribe a fixed number of times that the police may require your attendance. The Investigating Officer may call you as many times as is reasonably necessary for the purposes of a lawful investigation. However, repeated or oppressive demands without investigative necessity may be open to judicial scrutiny. If you believe the process is being misused, you should seek legal advice.

Q. Does receiving a Section 35(3) notice mean I am guilty?

No. A Section 35(3) notice merely indicates that the police require your presence during an ongoing investigation. It is not a finding of guilt, and it does not create any presumption that you have committed the offence. Every accused person is presumed innocent unless proven guilty before a competent court.

Q. What should I do immediately after receiving a Section 35(3) notice?

You should carefully read the notice, verify the FIR details, consult a criminal lawyer, preserve all relevant documents and electronic records, appear before the Investigating Officer on the specified date, and cooperate with the investigation while protecting your legal rights.

Conclusion

Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) represents a significant shift in India’s criminal procedure. It reflects the legislature’s intention to ensure that arrest is not treated as the default consequence of every criminal allegation, particularly in cases where the objectives of the investigation can be achieved through the accused’s voluntary cooperation.

The provision strikes a careful balance between two equally important interests. On one hand, it enables the police to conduct an effective and fair investigation by requiring the person concerned to appear and cooperate. On the other hand, it protects the constitutional guarantee of personal liberty under Article 21 by reducing unnecessary arrests and ensuring that deprivation of liberty occurs only when it is genuinely required by law.

For a person receiving a Section 35(3) notice, the correct approach is neither panic nor complacency. The notice should be treated as a legal obligation that must be complied with responsibly. Timely appearance before the Investigating Officer, honest cooperation, preservation of relevant evidence, and obtaining appropriate legal advice not only facilitate the investigation but also strengthen the statutory protection against unnecessary arrest.

At the same time, Section 35(3) does not curtail the lawful powers of the police. Where the statutory grounds under Section 35 of the BNSS are genuinely established—such as the likelihood of absconding, destruction of evidence, intimidation of witnesses, or persistent non-cooperation—the Investigating Officer retains the authority to arrest, provided the decision is supported by recorded reasons and complies with the safeguards prescribed by law.

Ultimately, the guiding principle of the BNSS is clear: investigation should ordinarily proceed through cooperation, while arrest should remain a carefully exercised exception rather than a routine practice. This balance preserves both the effectiveness of criminal investigations and the constitutional commitment to fairness, due process, and personal liberty.

The information provided in this article is for general informational purposes only and should not be construed as legal advice. Readers who wish to stay updated on developments related to Section 69 BNS, may join our WhatsApp Legal Awareness Community by clicking here.