A notice under Section 35 is the single most useful piece of paper an accused person can hold in the first weeks of an investigation, and most people file it away without understanding what it does. It is not a summons from a court. It is not an arrest. It is the investigating officer's recorded decision that your arrest is not necessary.
Why the officer had to issue it
Section 35(1)(b) is the part that matters. Where the offence is punishable with imprisonment which may be less than seven years or may extend to seven years, a police officer may arrest without warrant only if he has reason to believe the person committed the offence and is satisfied that the arrest is necessary for one of five stated purposes: to prevent a further offence, for proper investigation, to prevent evidence being made to disappear or tampered with, to prevent inducement or threats to a witness, or because the person's presence in court cannot otherwise be ensured. He must record those reasons in writing while making the arrest. The proviso then does something the old law did not spell out as plainly. Where arrest is not required, the officer shall record the reasons in writing for not making the arrest.
So the notice is the visible end of a written exercise. That is exactly why it is worth so much later. When a bail court or a High Court asks whether this was a case where custody was ever needed, the answer is already on the file in the investigating officer's own hand.
What the notice protects, and what it does not
Section 35(5) provides that where the person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. Two words carry the weight. Continues, because a single appearance does not buy permanent protection. And recorded, because the officer cannot simply change his mind at the counter.
Section 35(6) is the other side. Where the person at any time fails to comply with the terms of the notice, or is unwilling to identify himself, the officer may arrest him for the offence mentioned in the notice, subject to any orders passed by a competent court. In practice that is how most avoidable arrests in Bengaluru happen. Somebody ignores two notices because the case looks weak to him, and the third visit is an arrest.
| Notice under Section 35 BNSS | Requirement under Section 179 BNSS | Summons from a court | |
|---|---|---|---|
| Who issues it | The investigating officer | The investigating officer | The Magistrate or Sessions Court |
| Who it is addressed to | A suspect the officer has decided not to arrest | A person acquainted with the facts, usually a witness | An accused, after cognizance is taken |
| What non-compliance leads to | Arrest under Section 35(6) | Consequences under the Sanhita for a person bound to attend | Warrants or proclamation where the separate statutory conditions are met |
| Form | Written notice | Order in writing | Written process of the court |
Going to the station
Attend on the date stated. If you genuinely cannot, write to the officer before the date, give a reason and ask for a fresh date, and keep proof of the letter. Silence is read as non-compliance and it is the one thing that hands the officer a lawful ground to arrest.
- The original notice, plus a photocopy for the officer to acknowledge with a seal, a signature and a date
- An identity document, because Section 35(6) also permits arrest where a person is unwilling to identify himself
- The documents that answer the allegation, kept as copies, with originals shown but not left behind
- A written list of everything you hand over, acknowledged on your copy
- Your advocate, who will normally wait outside the interrogation room rather than sit inside it
What you have to answer once you are there
Section 180(2) says a person examined by the police is bound to answer truly all questions relating to the case put to him, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. That exception is statutory and you are entitled to rely on it. Section 181(1) says no statement made to a police officer in the course of an investigation shall, if reduced to writing, be signed by the person making it. Read together, those two provisions describe the correct posture, which is neither total silence nor a signature on whatever is put in front of you.
There is one more protection people rarely invoke. Section 35(7) provides that no arrest shall be made without the prior permission of an officer not below the rank of Deputy Superintendent of Police where the offence is punishable with imprisonment of less than three years and the person is infirm or is above sixty years of age.
What I tell clients at this stage
The temptation after receiving a Section 35 notice is to treat the matter as closed and stop taking advice. That is the wrong reading. A notice tells you about today, not about the chargesheet. The investigation continues, the sections can be altered, and the officer's opinion under Section 35(5) can be revisited on recorded reasons. What the notice buys you is time to do the useful work calmly, which means collecting the documents, preserving devices and messages before anything is overwritten, and taking a considered decision on whether a pre-arrest application is needed at all. Our note on what a Section 35 BNSS notice obliges you to do sets out the mechanics, and where the fear of arrest is real despite the notice, the guide on anticipatory bail in India explains when that application is worth making. If the calls keep coming without any notice at all, that is a different problem and it is dealt with in our answer on being called to the station without a written notice.