FIR, police notice under section 35 BNSS and the anticipatory bail process of India

There is a peculiar silence that descends on anyone who learns that an FIR has been registered against him or her and that the police are looking for them or want them to appear for questioning. Sometimes, the first intimation is not a police officer at the doorstep but a notice received on WhatsApp or by post—a notice under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has replaced the familiar Section 41A regime under the Code of Criminal Procedure.

The immediate concern is usually - Can I be arrested? Do I need to appear? Should I seek anticipatory bail? It is in this moment of uncertainty that one of the most important protections available under Indian criminal procedure assumes significance: the right to seek anticipatory bail under Section 482 of the BNSS, corresponding broadly to the erstwhile Section 438 of the CrPC.

Anticipatory bail is neither a pardon nor an acquittal. Nor does it bring an investigation to an end. It is essentially a pre-emptive protection against arrest—a judicial safeguard that enables an accused to participate in an investigation without the constant fear of being taken into custody, while remaining subject to such conditions as the court may impose. Put simply, an order of anticipatory bail is a direction that in the event of arrest, the person concerned shall be released on bail. This distinction is important. Seeking anticipatory bail does not mean that a person is refusing to cooperate with an investigation. On the contrary, courts routinely require the applicant to join and cooperate with the investigation.

The object of this relief is to balance the competing interests: the investigating agency's legitimate right to investigate an offence and the individual's right to liberty and protection against unnecessary or coercive arrest.

When Civil Disputes Acquire a Criminal Colour

Anyone practising criminal and commercial litigation today encounters this reality with considerable frequency where criminal complaints are sometimes invoked in disputes that are predominantly contractual, commercial, property-related or otherwise civil in character.

An FIR is used as an extraordinary and powerful instrument of exerting pressure. TheHon’ble Supreme Court has repeatedly cautioned against permitting criminal proceedings to become a mechanism for settling civil scores or recovering dues. This becomes possible since it is also the law that merely because a transaction has a civil or commercial element does not mean that criminal proceedings are impermissible qua such a transaction if the ingredients of the offence are made out. A civil dispute and a criminal offence can coexist on the same facts where the ingredients of a criminal offence are genuinely disclosed.

The real question therefore in such cases is whether the allegations reveal actual criminality or whether a dispute that is essentially civil has simply been dressed up in criminal language to exert pressure. That distinction can often become crucial when it comes to approaching the court seeking the grant of anticipatory bail.

The Significance of a Section 35 BNSS Notice

The receipt of a police notice should neither be ignored nor automatically treated as an indication that arrest is inevitable. Section 35 BNSS regulates the circumstances in which the police may arrest without warrant and also contains the framework requiring a person to appear before the police where arrest is not considered necessary.

The nature of the alleged offences in the FIR matters considerably. There may be cases involving offences carrying serious punishments where the statutory position regarding arrest is materially different and where even without a notice under section 35 the Police office are effect an arrest with reasons to be recorded. There may also be cases where the investigating officer is only requiring cooperation of the accused and the allegations are not extremely serious and s/he has no immediate intention of arresting the person. This is why the first question after one receives an FIR or police notice should not mechanically be -How quickly can I file anticipatory bail ? - The better question to ask is - On these facts, what is my actual risk of arrest, and what is the correct legal strategy in my case.

What Does the Court Consider in Anticipatory Bail?

An application for anticipatory bail requires the court to undertake a careful assessment of the case. Among other considerations, the court may examine the nature and gravity of the accusations in the FIR, the underlying nature of the dispute and surrounding circumstances, the applicant's antecedents, the possibility of absconding, the likelihood of influencing witnesses or interfering with the investigation, and whether custodial interrogation is genuinely required.

No two cases are identical. An allegation arising from an ordinary commercial transaction cannot necessarily be approached in the same manner as an allegation involving violence, organised criminal activity, or where there is a demonstrable risk of the accused absconding.The peculiarity of the facts in each case matters. The allegations in the FIR matter as well.

Should You Always Apply for Anticipatory Bail After Receiving a Police Notice u/s 35 BNSS?

Not necessarily. This is once aspect of criminal strategy that is frequently overlooked. I have seen people filing for anticipatory bails in haste and getting time dismissed leading to increased anxiety and things spiralling out of control. We must know that over time, courts have become increasingly conscious of the potential misuse of criminal proceedings and of the need to protect personal liberty in deserving cases. But once must know that an anticipatory bail application should not be filed mechanically every time a person receives a police notice. There may be situations where the investigating agency has merely issued a notice seeking the person's participation and there is no immediate apprehension of arrest. Depending upon the facts, rushing to court may be unnecessary. In certain circumstances, a premature anticipatory bail application may even invite the obvious question from the court, if the police are presently only asking you to cooperate with the investigation, what is the basis of your apprehension of arrest? Conversely, there are cases where the allegations in the FIR, conduct of the investigating agency, nature of the offences or surrounding circumstances demonstrate a very real possibility and apprehension of arrest, harassment and abuse of process. Therefore, there is therefore no universal formula an each case has to be and must be evaluated on its own merits.

Before reacting impulsively when a police notice or intimation of an FIR is received, it is important to understand the FIR, identify the offences invoked, examine the punishment prescribed for those offences, understand the background of the dispute, preserve relevant documents and electronic records, and assess the conduct of the investigating agency. One mist approach a sound legal practitioner who can evaluate whether the appropriate course is to join the investigation pursuant to the notice, seek anticipatory bail, challenge an unlawful action, seek appropriate protection from the court, or adopt some combination of these remedies. The objective should not be to obstruct an investigation. It should be to ensure that participation in the investigation does not come at the cost of an unnecessary deprivation of liberty.

Anticipatory Bail Is Not Necessarily Time-Bound

Another important development in anticipatory bail jurisprudence is that the protection, once granted, is not ordinarily required to expire after a fixed period merely because it is anticipatory in nature. The Constitution Bench of the Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) clarified that an order granting anticipatory bail need not invariably be limited to a fixed period and can ordinarily continue until the conclusion of trial, although courts remain entitled to impose appropriate conditions and the protection can be dealt with in accordance with law where circumstances warrant. Anticipatory bail is therefore not merely a temporary bridge until the filing of a charge-sheet. In an appropriate case, it can provide continuing protection while ensuring that the accused remains available to the investigating agency and subsequently to the court.

Do Not Panic. Understand the Process.

An FIR is serious issue. A police notice should never be ignored. But neither should it either automatically produce panic. Indian criminal procedure contains safeguards designed to balance the power of investigation with the constitutional value of personal liberty. So, the next time you—or somebody you know—learns of an FIR or receives a notice from the police, do not lose composure and do not act merely out of fear. Understand what has been alleged. Understand why the police want you to appear. Assess the real possibility of arrest. Preserve your evidence. Obtain competent legal advice. And then choose the remedy appropriate to the facts.

Remember our criminal justice System contains enough and more circuit-breakers against abuse of process and abuse of power.

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