A written notice from the police is often the first sign of a criminal case. It may ask you to appear as a person complained against, or to attend as a witness. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) now governs both. Sections 41 and 41A of the Code of Criminal Procedure, 1973 (CrPC) are merged into Section 35 of the BNSS, and the witness provision in Section 160 of the CrPC is now Section 179.
We act for accused persons and for complainants, including companies and their officers, before the Madras High Court and the Chennai trial courts.
Notice of appearance instead of arrest
Section 35 of the BNSS (formerly Sections 41 and 41A of the CrPC) sets the conditions for arrest without warrant. Where arrest is not required, the police officer shall issue a notice directing the person against whom a reasonable complaint, credible information or reasonable suspicion exists to appear before him or at a place named in the notice.
The person served has a duty to comply with the notice (Section 35(4)). While he complies, he shall not be arrested for the offence in the notice unless the officer, for reasons to be recorded, is of the opinion that he ought to be arrested (Section 35(5)). If he fails to comply or refuses to identify himself, the officer may arrest him, subject to any order of a competent court (Section 35(6)).
The BNSS adds a new rule in Section 35(7). For an offence punishable with less than three years' imprisonment, no arrest may be made without prior permission of an officer not below the rank of Deputy Superintendent of Police if the person is infirm or above sixty years of age.
The Arnesh Kumar guidelines
In Arnesh Kumar v. State of Bihar (2014), the Supreme Court held that police must not arrest automatically and must satisfy themselves that arrest is necessary under the conditions in Section 41 of the CrPC. The directions apply to offences punishable with imprisonment up to seven years, with or without fine, and are not limited to cases under Section 498A of the IPC (now Section 85 of the BNS). In Satender Kumar Antil v. CBI (2022), the Court held that non-compliance with these provisions entitles the accused to bail.
The directions in Arnesh Kumar are these:
- police officers must be given a checklist of the Section 41(1)(b)(ii) conditions, and must forward it with reasons when producing the accused for detention;
- the Magistrate must read that report and record his own satisfaction before authorising detention;
- a decision not to arrest must be sent to the Magistrate within two weeks of the case being registered;
- the notice of appearance must be served within two weeks, extendable by the Superintendent of Police for written reasons;
- officers who disobey face departmental action and contempt proceedings, and a Magistrate who authorises detention without reasons faces departmental action.
Safeguards when a person is arrested
The BNSS sets out duties of the arresting officer and rights of the person arrested:
- the officer must wear a clear identification of his name and prepare a memorandum of arrest, attested by a family member or a respectable local person and countersigned by the person arrested (Section 36);
- the person must be told of the right to have a relative or friend informed of the arrest (Section 36(c)), and the police must inform that person and the designated police officer in the district of the arrest and place of custody (Section 48);
- full particulars of the offence or other grounds of arrest must be communicated forthwith (Section 47(1)), and for an offence that is not non-bailable the person must be told he is entitled to bail (Section 47(2));
- the person may meet an advocate of his choice during interrogation, though not throughout it (Section 38);
- a person arrested without warrant must be taken without unnecessary delay before a Magistrate having jurisdiction or the officer in charge of a police station (Section 57), and Section 58 sets a twenty-four hour limit on such detention.
Grounds of arrest must be given in writing
In Vihaan Kumar v. State of Haryana (2025), the Supreme Court held that informing the arrested person of the grounds of arrest is a mandatory requirement of Article 22(1). The information must be given effectively, in a language he understands. When he says it was not done, the burden is on the police to prove compliance. Non-compliance vitiates the arrest and the remand, and the court must order release. The Court said its reasoning on Section 50 of the CrPC applies to Section 47 of the BNSS.
In Mihir Rajesh Shah v. State of Maharashtra (2025), the Supreme Court held that this applies to offences under all statutes, including the IPC and the BNS. The grounds must be given in writing, in a language the arrestee understands. If that is not possible at the time of arrest, they may be given orally first, and then in writing within a reasonable time and at least two hours before production before the Magistrate for remand. Failure renders the arrest and remand illegal. The Delhi High Court has held that this ruling applies only to arrests made after 6 November 2025, the date of the judgment.
Police summons to witnesses
Section 179 of the BNSS (formerly Section 160 of the CrPC) allows an investigating officer, by an order in writing, to require the attendance of any person within the limits of his own or an adjoining police station who appears to be acquainted with the facts. That person must attend.
A male under fifteen or above sixty years of age, a woman, a mentally or physically disabled person, or a person with acute illness cannot be required to attend anywhere other than the place where he or she resides, though such a person may choose to attend the police station.
What to do when you are summoned
Read the notice closely to see whether it is a Section 35 notice to a person accused or a Section 179 order to a witness, and which offence and FIR it refers to. Keep the original and note when it was served. Attend on the date given, or ask in writing for another date. Take a lawyer's advice before you attend, and consider anticipatory bail under Section 482 of the BNSS if you fear arrest for a non-bailable offence. If you are arrested, ask for the written grounds of arrest and for your family to be informed.
Supreme Court decisions
Arnesh Kumar v. State of Bihar(2014) 8 SCC 273
Police must not arrest automatically in offences punishable up to seven years, and Magistrates must not authorise detention mechanically.
Satender Kumar Antil v. Central Bureau of Investigation(2022) 10 SCC 51
Non-compliance with the arrest and notice provisions entitles the accused to bail.
Vihaan Kumar v. State of Haryana(2025) 5 SCC 799
Failure to inform the arrested person of the grounds of arrest vitiates the arrest and remand.
Mihir Rajesh Shah v. State of Maharashtra[2025] 11 S.C.R. 291
Written grounds of arrest are required in all offences, at the latest two hours before production for remand.
Questions
Do I have to go to the police station if I get a notice?
You have a duty to comply with a Section 35 notice, and failure can lead to arrest. A witness ordered under Section 179 must attend, though people in the protected groups can be required to attend only where they live.
Can I be arrested if I comply with a notice of appearance?
Under Section 35(5), a person who complies shall not be arrested for the offence in the notice unless the officer records reasons for the opinion that arrest is needed.
Can I take a lawyer with me?
Section 38 of the BNSS gives an arrested person the right to meet an advocate of his choice during interrogation, though not throughout the interrogation.
What if the police did not give me the grounds of arrest?
The grounds of arrest must be communicated to you, and for arrests from 6 November 2025 they must be given in writing, in a language you understand, at least two hours before you are produced for remand. Otherwise the arrest and remand are illegal and you are entitled to release. For earlier arrests, Vihaan Kumar (2025) still requires the grounds to be communicated effectively.
I am above sixty. Are there special protections?
Yes. For offences punishable with less than three years, Section 35(7) requires prior permission of a Deputy Superintendent of Police or higher before arresting a person who is infirm or above sixty.
This guide is general information on Indian criminal law as at 21 October 2026. It is not legal advice on any particular case.