The short answer
An FIR does not automatically mean police can arrest first and explain later. For offences punishable with up to seven years, the Supreme Court said in June 2026 that a notice under Section 35(3) of the BNSS (formerly Section 41A of the CrPC) is the rule and arrest is the exception. Police must have reason to believe the person committed the offence and must show why arrest is necessary, with the reasons recorded in writing.
This comes on top of Arnesh Kumar v. State of Bihar (SC, 2014), which requires the police checklist and reasons to reach the magistrate, and bars mechanical remand. Notice is a safeguard against routine arrest — it is not an acquittal.
The legal test
Police need two things, not one: a reason to believe the person committed the offence, and at least one statutory necessity ground. Arrest cannot be the reflex action after an FIR is registered. Both the belief and the necessity must be recorded in writing — an undocumented arrest is harder to defend and easier to challenge.
The necessity checklist
The necessity grounds police may rely on are:
- Preventing a further offence.
- Enabling proper investigation.
- Preventing the disappearance or tampering of evidence.
- Preventing a threat, inducement or promise to witnesses.
- Ensuring the person's presence before the court.
What a notice means
If you receive a notice, you must appear as directed. Comply on time and keep proof: the notice itself, acknowledgements, travel proof and messages. A person who complies should not be arrested for that offence unless the officer later records why arrest became necessary. Do not ignore a notice — compliance is central to the protection. Seek legal advice if the notice is defective or impossible to comply with.
The magistrate's role
Arnesh Kumar requires the police checklist and the recorded reasons to reach the magistrate. Mechanical remand is not permitted; the magistrate must record satisfaction that the arrest was justified before authorising custody. If remand was granted without that check, a lawyer can challenge it.
If the rule is breached
A lawyer can challenge illegal custody or remand on the facts. Non-compliance with the notice-before-arrest framework can expose officers to departmental action and contempt, but relief depends on the facts and on court orders — and a procedural breach does not by itself mean the FIR will be quashed.
This is a description of the public process, not legal advice. For advice about your own case, speak to a lawyer or the police station handling it. Keep a file with the notice copy, the date received, appearance proof, officer details, your submissions and the next date.