Police Sent You a Notice to Appear? Section 41A CrPC vs Section 35 BNSS

Under Indian law, if police suspect you of a cognizable offence punishable with up to seven years, they must ordinarily issue a notice to appear under Section 35(3)-(6) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) instead of arresting you outright — replacing Sections 41 and 41A of the CrPC. A new Section 35(7) BNSS also bars arrest of an infirm person or a person above sixty, for an offence punishable with less than three years, without the prior permission of a Deputy Superintendent of Police-rank officer.

The situation

A person receives a written notice from a police station directing them to appear before an officer, or at another specified place, in connection with a cognizable offence — without being arrested. They want to know whether the police were required to do this instead of arresting them, whether they must comply, and what happens if they do not.

Old law vs new law at a glance

What the law requires now, step by step

Step 1 — Police form a suspicion of a cognizable offence

Section 35(1) BNSS opens the same way Section 41(1) CrPC did: a police officer may arrest without a warrant a person who commits a cognizable offence in the officer's presence, or against whom a reasonable complaint, credible information or reasonable suspicion exists of having committed one.

Step 2 — The seven-year threshold decides notice or arrest

For an offence "punishable with imprisonment for a term which may be less than seven years or which may extend to seven years," Section 35(1)(b) BNSS requires the officer to be satisfied of specific grounds — preventing further offences, proper investigation, preventing tampering with evidence, preventing inducement or threat to witnesses, or ensuring the person's presence in court — before an arrest is justified. Sub-section (1) also sets out several other grounds for arrest without warrant that sit outside this seven-year band — for example, a person proclaimed as an offender, a person found in possession of suspected stolen property, or a person who obstructs a police officer or escapes lawful custody — carried over from Section 41(1)(c)-(i) CrPC largely unchanged and renumbered as Section 35(1)(d)-(j) BNSS.

Step 3 — Notice issued instead of arrest

Section 35(3) BNSS states:

"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... to appear before him or at such other place as may be specified in the notice."

This is the operative core of what was Section 41A(1) CrPC, now built directly into Section 35.

Step 4 — Complying with the notice

Under Section 35(4) BNSS, it is the person's duty to comply with the terms of the notice. Section 35(5) BNSS then provides that where the person complies and continues to comply, they "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."

Step 5 — Non-compliance opens the door to arrest

Section 35(6) BNSS: where the person "at any time, fails to comply with the terms of the notice or is unwilling to identify himself," the police officer may arrest them for the offence mentioned in the notice, subject to any order a competent court has already passed.

Step 6 — The new age-and-infirmity safeguard

Section 35(7) BNSS is a standalone addition:

"No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age."

This applies to a narrower band of offences (under three years) than the notice mechanism in Section 35(3)-(6) (up to seven years), and it is a permission gate on the arrest decision itself, not a notice procedure.

What changed — and what did not

• Consolidated, not rewritten: The substantive text of Section 41A(1)-(4) CrPC survives almost word for word inside Section 35(3)-(6) BNSS. Identical in substance — the change is structural, folding a standalone section into the parent arrest provision.
• New provision: Section 35(7) BNSS has no counterpart anywhere in Section 41 or 41A CrPC. It is a fresh, age-and-infirmity-specific permission requirement layered on top of the existing notice-and-arrest scheme.
• Modified: The overall shape of Section 35(1) BNSS mirrors Section 41(1) CrPC's list of arrest grounds (including the seven-year threshold and the ground in clause (ba) for offences punishable with more than seven years or with death, which the CrPC footnotes record as substituted into Section 41(1) by Act 5 of 2009 w.e.f. 1-11-2010), but it is now a single, longer section that also carries the former Section 41A notice procedure.
• Unchanged threshold logic: The core test for whether a notice must be issued — an offence "which may be less than seven years or which may extend to seven years" — is carried over from CrPC to BNSS without alteration.

Which law applies to your case

Under the savings clause at Section 531(2)(a) BNSS, an appeal, application, trial, inquiry or investigation that was pending immediately before the BNSS came into force (1 July 2024) is to be disposed of, continued, held or made in accordance with the CrPC as in force immediately before that commencement, as if the BNSS had not come into force. The full rule — including what "pending" means and which stage it must have reached — is set out in Which Law Applies to an Offence Before 1 July 2024. This article does not restate the transition rule beyond that reference.

Practical checklist

For the person who received the notice:

• Check what the notice specifies — the officer before whom, or the place at which, you must appear (Section 35(3) BNSS) and the offence it refers to (Section 35(5)-(6) BNSS).
• Comply with the notice's terms — under Section 35(4) BNSS this is a legal duty, not a courtesy.
• If you are infirm or above sixty and the alleged offence carries under three years' imprisonment, ask whether DSP-rank permission under Section 35(7) BNSS was obtained before any arrest step.
• Keep a copy of the notice and any written communication from the police station.

For the advocate:

• Verify which sub-clause of Section 35(1) the police are relying on for the underlying offence, since that determines whether notice under Section 35(3) was mandatory in the first place.
• Where arrest followed non-compliance, check that Section 35(6)'s conditions (failure to comply, or refusal to identify) are actually recorded, not merely asserted.
• For a client above sixty or infirm, check the case file for the DSP-rank permission required by Section 35(7) before advising on any custody challenge.
• Cross-check the offence's punishment bracket against both the seven-year threshold (Section 35(1)(b)) and the three-year threshold (Section 35(7)) — they are different tests serving different purposes.

Frequently asked questions

Can the police arrest me instead of sending a notice under Section 35 BNSS?

Only if a ground in Section 35(1) BNSS applies — for an offence punishable with up to seven years, the conditions in Section 35(1)(b) must be satisfied and reasons recorded in writing; for an offence punishable with more than seven years or death, Section 35(1)(c) applies — or if you fail to comply with a notice already issued (Section 35(6)). In all cases where arrest is not required under Section 35(1), Section 35(3) BNSS requires a notice to appear.

What was Section 41A CrPC and where did it go?

Section 41A CrPC required police to issue a notice of appearance instead of arresting a person for offences where arrest was not otherwise required under Section 41(1). That text now forms Section 35(3) to 35(6) of the BNSS, which absorbed it into the arrest provision itself rather than keeping it as a separate section.

What happens if I ignore a Section 35 BNSS notice?

Under Section 35(6) BNSS, if you fail to comply with the terms of the notice, or are unwilling to identify yourself, the police officer may arrest you for the offence mentioned in the notice, subject to any order a competent court has passed.

Is there extra protection for elderly people under the new law?

Yes. Section 35(7) BNSS is a new provision with no equivalent in the CrPC. For offences punishable with less than three years' imprisonment, no arrest can be made of a person who is infirm or above sixty years of age without the prior permission of an officer not below the rank of Deputy Superintendent of Police.

Does this apply to an offence I am accused of committing before 1 July 2024?

It depends on whether an appeal, application, trial, inquiry or investigation was already pending immediately before the BNSS came into force — if so, Section 531(2)(a) BNSS requires it to continue under the CrPC. See the dedicated transition guide for the full rule.

Related on Veritect

• Section 41 CrPC vs Section 35 BNSS — Arrest Without Warrant
• Which Law Applies to an Offence Before 1 July 2024
• Arrest of Women and Senior Citizens: BNSS vs CrPC
• Rights After Arrest: A Checklist Under BNSS vs CrPC
• Handcuffing and Use of Force During Arrest — Section 43 BNSS
• Section 167 CrPC — Remand and Default Bail
• Section 160 CrPC vs Section 179 BNSS — Police Power to Require Attendance of Witnesses
• Section 484 CrPC vs Section 531 BNSS — Repeal and Savings

Statutory sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 35(1)-(7), Section 531 (read from BNSS_2023.md)
• Code of Criminal Procedure, 1973 — Section 41(1)-(2), Section 41A(1)-(4) (read from CrPC_1973.md)

This guide explains the statutory text of the BNS, BNSS and BSA as enacted. It is not legal advice; for a specific case, consult an advocate.