A person who is named in a complaint or FIR for an offence punishable with imprisonment of up to seven years may receive a notice of appearance from the police. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), this notice is issued under Section 35(3). It corresponds to Section 41A of the Code of Criminal Procedure, 1973 (CrPC).
Why is the notice issued?
The law requires the police not to arrest automatically in offences punishable with imprisonment of up to seven years. Instead, where arrest is not required under the conditions in Section 35(1), the police are to issue a notice directing the person to appear before them. The Supreme Court has repeatedly emphasised that the police must comply with this requirement.
What the law says about compliance
- The person receiving the notice is required to comply with its terms.
- Under Section 35(5) BNSS, as long as the person complies and continues to comply, they are not to be arrested for the offence mentioned in the notice unless the police officer, for reasons to be recorded, is of the opinion that arrest is necessary.
- If the person fails to comply or is unwilling to identify themselves, the police may arrest them, subject to orders passed by a competent court.
- Section 35(7) BNSS, which has no equivalent in the CrPC, provides that no arrest shall be made without 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 above sixty years of age.
Practical points
- Keep the original notice and note the date, time and place of appearance.
- Carry identity documents and copies of any documents relevant to the allegations.
- A person who reasonably apprehends arrest despite the notice may consider whether an application for anticipatory bail is appropriate in the facts of their case.
This article is general information and is not legal advice. The application of these provisions depends on the facts of each case.