41A Notice (Section 35 BNSS) from the Police — What It Means and What to Do

In short

For offences punishable with imprisonment of up to seven years, the police are generally expected to issue a notice of appearance under Section 35(3) BNSS (the old Section 41A CrPC) instead of arresting. A person who complies with the notice is not to be arrested for that offence unless the police record reasons why arrest has become necessary. Failing to comply can lead to arrest. If the case involves offences punishable with more than seven years, or there is a real risk of arrest, an anticipatory bail application should be considered before appearing.

What to do when you receive the notice

1. Read the notice carefully — the FIR number, sections, police station, date and time of appearance.
2. Get a copy of the FIR (usually available online or from the police station) and check the maximum punishment for every section applied.
3. Consult an advocate before you appear, especially if any section carries more than seven years, or if co-accused have been arrested.
4. Appear on the date, or seek a new date in writing with reasons. Keep proof of every communication.
5. Carry documents the notice asks for, and identity proof. Answer questions truthfully; you are not obliged to incriminate yourself.

Can I be arrested after appearing?

Where a person complies with the notice, arrest requires the police to record reasons. The Supreme Court has repeatedly held that arrest in offences punishable up to seven years should not be routine. For offences punishable with less than three years, where the person is infirm or above 60 years of age, arrest needs the prior permission of an officer not below the rank of Deputy Superintendent of Police (Section 35(7) BNSS).

When anticipatory bail is still advisable

• Any section in the FIR is punishable with more than seven years (for example, cheating of a large amount, or offences under special laws).
• Co-accused in the same FIR have been arrested.
• The police are seeking recovery of money, documents or devices.
• The matter is with the Economic Offences Wing, cyber police or a special unit.

Related

• How anticipatory bail works in Pune
• Cyber police notice — first 72 hours
• EOW and financial-crime matters

Section 35 BNSS is the new Section 41A CrPC

Since 1 July 2024, the 41A notice is issued under Section 35(3) of the BNSS. The content is the same: a notice to appear before the police instead of being arrested. Sections 35(4) to 35(6) set out the duty to comply, the protection from arrest on compliance, and the consequence of not complying.

41A / Section 35 notice in 498A, POCSO, SC/ST and cyber cases

• 498A (cruelty) cases: the Supreme Court’s directions in Arnesh Kumar require the police to follow the notice procedure rather than arrest routinely.
• POCSO and SC/ST Act cases: many offences carry more than seven years, or special provisions apply, so the notice route may not be available — take advice before appearing.
• Cyber crime: Pune’s cyber police commonly issue notices to persons linked to accounts, numbers or devices under investigation.

Can a Section 35 notice be issued without an FIR?

A notice under Section 35 relates to a cognizable offence of which the person is reasonably suspected — usually after an FIR or a complaint under enquiry. A phone call or WhatsApp message asking you to come to the police station should be verified: ask for the FIR or enquiry number and the section under which you are being called.

Notice to an accused or to a witness?

This page explains the law in general terms. Every matter turns on its own facts — please speak to an advocate about yours.