Section 41A CrPC: Notice of Appearance Before Police and BNSS Section 35
Section 41A of the Code of Criminal Procedure, 1973 (CrPC) provided for a police notice requiring a person to appear during investigation when immediate arrest was not necessary. Since 1 July 2024, the corresponding provisions are found in Section 35(3) to 35(6) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This guide explains when a notice is issued, the duty to cooperate, and the circumstances in which arrest may follow.
Current law: Section 35 of BNSS, 2023
The BNSS replaced the CrPC with effect from 1 July 2024. Section 35 deals with arrest without warrant and incorporates the notice-of-appearance safeguards formerly contained in Section 41A CrPC. Section 531 of the BNSS preserves the application of the former Code to specified proceedings pending at commencement.
Section 35(3): When police must issue notice
Where arrest is not required under Section 35(1), the police officer must issue a notice to a person against whom a reasonable complaint, credible information or reasonable suspicion exists of involvement in a cognizable offence. The notice directs the person to appear before the officer or at the specified place.
Section 35(4): Duty to comply
The recipient has a statutory duty to comply with the terms of the notice, including its stated time and place of appearance.
Section 35(5): Protection against arrest on compliance
A person who complies and continues to comply with the notice must not be arrested for the offence specified in it unless the police officer records reasons for concluding that arrest is necessary.
Section 35(6): Failure to comply or identify oneself
If the person fails to comply with the notice or is unwilling to identify themselves, the officer may arrest the person for the offence stated in the notice, subject to any order passed by a competent court. Arrest is not automatically mandatory merely because an appearance was missed.
Section 35(7): Additional safeguard
For an offence punishable with imprisonment of less than three years, where the person is infirm or above sixty years of age, arrest requires prior permission of an officer not below the rank of Deputy Superintendent of Police.
Section 41A CrPC: Meaning and four subsections
Section 41A was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009), effective 1 November 2010. The 2010 amendment (Act 41 of 2010), effective 2 November 2010, made issue of notice mandatory in qualifying cases and revised subsection (4).
- Subsection (1): When arrest was not required under Section 41(1), the police officer was required to issue a notice of appearance to a person reasonably suspected of committing a cognizable offence.
- Subsection (2): The person receiving notice was obliged to comply with its terms.
- Subsection (3): A person who complied and continued to comply could not be arrested for that offence unless the officer recorded reasons for arrest.
- Subsection (4): Failure to comply or refusal to identify oneself could permit arrest, subject to orders of a competent court.
These rules are substantially continued by BNSS Section 35(3) to 35(6), but the correct statutory citation depends on the proceeding and the applicable transitional provisions.
When is arrest necessary?
For cognizable offences punishable by imprisonment up to seven years, Section 35(1)(b) BNSS requires the officer to have reason to believe that the person committed the offence and to be satisfied that arrest is necessary for a statutory purpose. Those purposes include preventing further offences, proper investigation, preventing destruction or tampering with evidence, preventing threats or inducements to witnesses, or ensuring appearance in court. Reasons for arrest must be recorded in writing; reasons for not arresting must also be recorded where applicable.
Therefore, the registration of an FIR or a request to attend questioning does not, by itself, make arrest inevitable.
How must a notice be served?
Form No. 1 in the Second Schedule of the BNSS provides the prescribed form of police notice under Section 35(3). The Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation (2025 INSC 909, 16 July 2025) clarified that service of Section 35(3) notices must be by physical means; WhatsApp or email alone is not valid service. The Bureau of Police Research and Development reiterated this requirement in its communication dated 26 August 2025.
See the official BPR&D communication on physical service of notices.
What should a person do after receiving a notice?
- Check the police station, FIR or case number, legal provisions, date, time, location and issuing officer.
- Keep a copy of the notice and proof of receipt.
- Attend at the specified place and cooperate with lawful investigative requests; seek legal advice where necessary.
- If attendance is genuinely impossible, communicate promptly in writing, explain the reason and request another date; do not assume the request excuses non-attendance.
- Keep records of appearances and correspondence. If arrest is threatened despite compliance, obtain legal advice promptly.
A notice to appear is not itself an arrest warrant, nor does it establish guilt.
Related arrest rights and protections
Article 22(1) of the Constitution protects the right to be informed of grounds of arrest and to consult and be defended by a legal practitioner. Article 22(2) generally requires production before a magistrate within 24 hours of arrest, excluding necessary journey time. BNSS Section 38 recognises the right of an arrested person to meet an advocate of choice during interrogation, though not throughout interrogation.
Read the related Section 41 CrPC guide on arrest without warrant and the Section 41B CrPC guide on arrest procedure.
Official legal sources
Frequently asked questions
What is the new BNSS section for Section 41A CrPC?
The corresponding provisions are Section 35(3) to 35(6) BNSS.
Can police arrest a person after issuing a notice?
Yes, in circumstances permitted by law. Continued compliance ordinarily protects against arrest for the noticed offence unless the officer records reasons for arrest.
Is appearance under a police notice compulsory?
Yes. Section 35(4) BNSS imposes a duty to comply with the notice.
Can police send a Section 35(3) notice only by WhatsApp?
No. The Supreme Court has required physical service of these notices.
This article is general legal information, not advice on an individual case. Applicable procedures may depend on the facts, court orders and transitional provisions.