Got a Notice from Cyber Cell Under Section 35 or 94 BNSS? What It Means and How to Respond

A message titled “Show Cause / Notice / Summon” from a cyber cell mentioning Section 35(3) BNSS or Section 94 BNSS is not the same thing — and responding as if it is creates the very risk the notice was designed to avoid. Section 35(3) BNSS (old Section 41A CrPC) is a notice of appearance that protects you from arrest if you comply; Section 94 BNSS (old Section 91 CrPC, now expanded to electronic devices) is a summons to produce documents or devices. One compels your presence, the other compels material. The Supreme Court’s 21 January and 16 July 2025 orders in Satender Kumar Antil v. CBI (2025 LiveLaw SC 751) made two points definitive: Section 35 notice is the rule for offences up to seven years, and it cannot be served on WhatsApp.

How do Section 35 and Section 94 BNSS compare in one view?

Is a Section 35 BNSS notice bad news or good news?

Good news, if you handle it correctly. The Supreme Court in Satender Kumar Antil v. CBI (21 Jan 2025, confirmed 16 Jul 2025) framed Section 35 as a liberty-protecting filter:

For offences punishable up to seven years, notice under Section 35(3) is the rule, arrest is the exception — the officer must have reason to believe you committed the offence and be satisfied arrest is necessary for a statutory purpose (prevent further offence, proper investigation, tampering, threat to witnesses, or securing presence), with reasons recorded under the proviso to Section 35(1).

Section 35(3)-(6) then sets the sequence:

• Sec 35(3): Officer issues notice directing you to appear before him at a specified place.
• Sec 35(4): It is your duty to comply with the notice terms.
• Sec 35(5): If you comply and continue to comply, you shall not be arrested for the offence in the notice, unless the officer, for reasons recorded, forms the opinion that you ought to be arrested.
• Sec 35(6): If you fail to comply with the notice at any time, or are unwilling to identify yourself, the officer may arrest you for the offence mentioned in the notice, subject to any order a competent court has passed.

Two limits added by the BNSS text are often missed: Section 35(7) bars arrest of a person above 60 or infirm in offences punishable with less than three years without prior approval, and the proviso requires written reasons for both arrest and non-arrest.

How must a Section 35 notice be served — and what about WhatsApp?

The Delhi High Court (Rakesh Kumar v. Vijayanta Arya (DCP), 2021 SCC Online Del 5629; Amandeep Singh Johar v. State (NCT of Delhi), 2018 SCC Online Del 13448) and then the Supreme Court (16 Jul 2025, 2025 INSC 909, IA 63691/2025) settled this after a wave of WhatsApp “notices”:

• Sections 63-64 BNSS (court summons) do allow electronic service when bearing the court’s seal.
• Section 71 BNSS (witness summons) expressly allows electronic service.
• Section 35 BNSS deliberately omits electronic service. The Legislature did allow electronic communication for investigations elsewhere — Section 94(1) (summons to produce may be “in physical form or in electronic form”) and Section 193(3) (police report forwarded electronically to Magistrate) — but consciously excluded Section 35.
• The Court held: non-compliance with a court summons does not immediately affect liberty; non-compliance with a Section 35 notice can lead to arrest under Section 35(6) and therefore engages Article 21. Electronic service of a liberty-affecting executive notice is not a valid substitute.

What that means for you: A PDF on WhatsApp titled “Section 35 Notice” with no physical service is legally deficient. Preserve the message, note the mode of delivery, but respond on the basis that you have knowledge of the case and seek proper service and time to appear — do not ignore it as if it were nothing, and do not treat the WhatsApp itself as valid service.

What does a Section 94 BNSS summons actually cover now?

Section 94(1) is materially wider than old Section 91:

“Whenever any Court or any officer in charge of a police station considers that the production of any document, electronic communication, including communication devices, which is likely to contain digital evidence or other thing is necessary or desirable… such Court may issue a summons or such officer may, by a written order, either in physical form or in electronic form, require the person… to attend and produce it, or to produce it, at the time and place stated.”

Highlights:

• Devices are expressly in scope. Old Section 91’s “document or other thing” was read to include devices; Section 94 says so, removing ambiguity.
• Electronic form is valid. Unlike Section 35, a Section 94 order may be sent electronically and still be valid.
• Section 94(2) convenience: You are deemed to have complied if you cause the document/thing to be produced without attending personally — useful where the bank statement or log can be sent with acknowledgement rather than a personal visit.
• Preserved limits: Section 94(3) carries forward the protections of Sections 129-130 BSA and the Bankers’ Books Evidence Act — privileged or statutorily protected material retains its protection.

In cyber freezes, Section 94 is the workhorse: the cyber cell sends a Section 94 order to the bank for the account statement and to you for the invoice trail. Complying cleanly with Section 94 is often what gets the freeze limited to the disputed amount.

How should you respond — the correct sequence for a cyber cell notice?

Step 0 — Read the paper, not the panic

Identify: crime number / NCRP acknowledgement, sections invoked (IT Act/BNS), date/place to appear, officer and rank, and whether the paper says Section 35 or Section 94. Check the mode of service — envelope with seal vs WhatsApp image. Note limitation: appearance is at the jurisdictional police station of the investigating cell, often in another state for cyber cases — which is where counsel’s role begins.

Step 1 — Do not ignore; do not volunteer a confession

• For Section 35: You have a duty to comply (Sec 35(4)) and a shield while compliant (Sec 35(5)). Ignoring is the fastest way to create a 35(6) arrest ground.
• For Section 94: Decide whether to produce personally or cause production under Sec 94(2). Keep copies and get acknowledgement.
• In both, remember Article 20(3) against self-incrimination. Cooperation means attending, producing what is sought, and answering identifying information — not signing a pre-written statement or unlocking a device without a lawful seizure memo.

Step 2 — Preserve, don’t destroy

Do not delete chats, format the device, or “test” the account. Destruction can become a separate obstruction allegation and destroys exculpatory material. Preserve the transaction trail (invoice, delivery proof, KYC) — the same bundle that secures a lien-limited de-freeze.

Step 3 — Produce with procedure

If police seek a phone or laptop, insist on a seizure memo, hash value (SHA-256) and acknowledgement, and that the search follows BNSS safeguards. The electronic record will later need a Section 63 BSA certificate — see the electronic evidence guide — so chain-of-custody and hash at seizure are not formalities.

Step 4 — Consider anticipatory bail where appropriate

Where the notice cites non-bailable sections carrying more than seven years (e.g., Section 111 BNS organised crime, Section 64 BNS rape), or where custody is likely, seek anticipatory bail under Section 482 BNSS (formerly Section 438 CrPC) before the first appearance. For up-to-seven-year matters with a cooperative 35(3) posture, the notice itself is often the protection — counsel can advise which track fits.

Primary sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 — Sections 35, 63-64, 71, 94, 173, 175, 179, 193, 482, 503
• Constitution of India — Article 21
• Satender Kumar Antil v. CBI: Supreme Court directions 21 Jan 2025 & 16 Jul 2025, 2025 INSC 909 (IA 63691/2025) — Section 35 only physical service; notice as rule for ≤7-year offences; standing orders to follow the Delhi High Court guidelines in Rakesh Kumar v. Vijayanta Arya (DCP) (2021) and Amandeep Singh Johar (2018)
• Bharatiya Sakshya Adhiniyam, 2023 — Section 63
• Information Technology Act, 2000 — Sections 66C, 66D, 78 (rank for investigation)
• Bharatiya Nyaya Sanhita, 2023 (cheating, personation, extortion, organised crime)