One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation,
One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, this is the order in which I would deal with it.
The message came at 9:40 on a Tuesday night. Unknown number, a constable's name, one line: come to the cyber cell tomorrow at 11. No case number, no written notice, just a blue tick.
He spent the night reading up on sections he might have been booked under and wondering whether he could simply not go. By morning he had replied three times, apologised twice, and forwarded a copy of his Aadhaar. That is where people usually lose ground — not in a courtroom, in the first forty-eight hours, on a phone.
I am working from his account. I have not seen the complaint, and it may say something quite different from what he told me.
What is a police notice to appear under Section 35(3) of the BNSS?
Since 1 July 2024, criminal procedure in India runs on the Bharatiya Nagarik Suraksha Sanhita, 2023. Cases registered before that date still run on the old Code of Criminal Procedure, 1973, so the first thing to establish is which one applies to you.
Section 35(3) of the BNSS is the provision that replaced Section 41A of the CrPC. In plain terms: where a police officer is not going to arrest you, he is required to issue you a notice directing you to appear before him. It is not optional courtesy. It is the legally prescribed route.
A few things follow from that:
- The notice must be in writing.
- It must state the nature of the complaint or the information against you. "Come and we'll tell you" is not a notice.
- It is served the way a summons is served — not by a phone call, and not by a message from a number you cannot verify.
- It is not an FIR. It is not an arrest. It is a direction to present yourself.
Should you go to the police station after a police notice to appear?
If a proper written notice has been served on you, yes. Go. On time.
Ignoring a validly served notice is the single most common mistake I see, and it converts a manageable situation into an avoidable one — because failure to comply with the notice is itself a ground on which the officer may arrest you without warrant. A person who appears with a lawyer on the date mentioned is in a very different position from a person who has to be traced.
If nothing in writing has been served and all you have is a call or a WhatsApp message, the position is different. You can, and should, ask for the notice in writing before you travel. Put that request in writing, keep a copy, and be polite about it. There is a difference between dodging the police and asking them to follow their own procedure.
What to carry, and who to bring
- The original notice, and a photocopy.
- A copy of the FIR or complaint, if one has been supplied to you.
- Any documents that are actually relevant — bank statements, invoices, chat records, courier receipts. Originals, not screenshots alone.
- A government photo ID.
- Your advocate's contact details written down. Assume your phone will be taken.
You are entitled to have a lawyer present. In practice, whether the officer permits your advocate to sit through the questioning varies from station to station, and there is no single rule that settles it everywhere. What is settled is that you should not walk in alone to an examination you do not understand.
What you are not obliged to do
Article 20(3) of the Constitution says no person accused of an offence shall be compelled to be a witness against himself. That has real consequences at the police station.
- You are not required to sign any statement made to a police officer during investigation. Statements recorded in the course of investigation are not signed, and their use at trial is tightly restricted.
- You are not required to confess. A confession to a police officer is not evidence of the confession itself.
- You are entitled to know what you are being asked about before you answer.
- You should not guess, speculate, or "explain everything" out of nervousness. Silence on a point is not an admission of it.
Answer what you are asked, accurately, and stop there. Rambling is what creates the second problem.
If arrest looks likely, move quickly on anticipatory bail
Where you have reasonable grounds to believe you may be arrested in a non-bailable offence, Section 482 of the BNSS (the old Section 438 CrPC) lets you apply to the Sessions Court or the High Court for bail in advance. Courts can and do grant interim protection while the application is heard.
Two honest caveats. First, anticipatory bail is discretionary — economic offence allegations in particular attract heavy scrutiny, and outcomes vary widely by court and by judge. Second, a bail application filed before you have the notice in hand is much weaker than one filed with it. If you have the paperwork, file early. If you don't have it, get it.
Where cyber crime complaints are involved
Cyber cells work off records, not testimony. If money moved, the transaction trail exists. If conversations happened, the logs exist. If you delete messages after receiving a call from the police, that deletion is itself a fact that can be established, and it damages you far more than the messages would have.
Do not delete anything. Do not "clear" a device. Do not hand your phone over unlocked and unrecorded. If electronic records are going to matter, the certificate requirement for electronic records under the Bharatiya Sakshya Adhiniyam, 2023 has to be dealt with properly at the right stage — that is a technical job, and it is usually done badly when nobody is paying attention to it early.
Frequently Asked Questions
Can I send my lawyer instead of going myself?
For a notice under Section 35(3) BNSS, no — it is directed at you, and you are expected to appear. For a notice compelling a witness to attend, the position is different and there are protections, including for women and children. Which category you fall into depends on the wording of the notice, so read it rather than assume.
What if the notice is only a phone call or a WhatsApp message?
Ask for it in writing, in writing. Keep a copy of your request. Until a proper notice is served, your obligation to appear under that provision has not arisen — though that is not a licence to be unavailable if the police turn up in person.
Does receiving a police notice to appear make me an accused?
Not automatically. Section 35(3) is used precisely in cases where arrest is not required, and the person may be a witness, a suspect, or someone named in a complaint. The label matters a great deal later, which is why what you say now, and how it is recorded, is worth getting right from the beginning.
How long will this take?
One appearance, or years. There is no honest answer in the abstract — it depends on whether an FIR follows, whether chargesheet is filed, and which court it lands in. What you control is the first appearance and the record it creates.
Send me the notice before you reply to it
If you have received a notice, or a call that is heading towards one, do not respond to it first. Email me a photograph of the notice, the date it was served, and a two-line note on what the complaint appears to be about. That is enough for me to tell you whether you need an advocate present, whether anticipatory bail is worth filing, and whether there is anything here to argue at all — on some sets of facts, there genuinely isn't, and you should hear that early rather than late.
You can reach me through /contact-us or fix a time at /book. If the matter is a family or matrimonial dispute running alongside the criminal complaint, Adv. Jyoti Rao handles those.
Do not send anything to the police station, and do not put anything in writing to the complainant, before you have had that conversation.
This article is general information about Indian law and is not legal advice on your own situation. Please consult an advocate with the papers in hand.
Advocate Sudhir Rao
Lawyers' Chamber, Chamber No. 86, Supreme Court of India, New Delhi – 110001
Phone: +91 97295 06771 | Email: me@sudhirrao.com
Criminal defence, cyber crime and economic offences
Advocate Sudhir Rao, Supreme Court of India