The Supreme Court of India has ruled that a notice issued by a police officer under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which corresponds to Section 41A of the Code of Criminal Procedure, 1973, cannot be served through electronic means such as WhatsApp. A bench comprising Justice M. M. Sundresh and Justice N. Kotiswar Singh held that the legislature consciously omitted this procedure to safeguard the fundamental right to personal liberty.
The Court dismissed an application filed by the State of Haryana seeking modification of a prior order that mandated physical service for such notices. The bench reasoned that non-compliance with a Section 35 notice could lead to arrest, and therefore, its service involves a substantive right that cannot be diluted by resorting to electronic communication, a mode not explicitly sanctioned by the statute for this purpose.
Background of the Case
The matter came before the court through an application (IA No. 63691 of 2025) filed by the State of Haryana in the ongoing case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. The state sought to modify the Supreme Court’s order dated January 21, 2025.
In its January order, the Court had directed all States and Union Territories to issue Standing Orders to their police forces, instructing them to serve notices under Section 41-A CrPC / Section 35 BNSS strictly through the modes prescribed in the statute. The order explicitly stated that “service of the aforesaid notices through WhatsApp or other modes of electronic communication, cannot be considered or recognised as an alternative or substitute to the mode of service recognised and prescribed under the CrPC, 1973/BNSS, 2023.”
That order was based on guidelines issued by the Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors. (2021) and Amandeep Singh Johar v. State (NCT Delhi) (2018), which the Supreme Court had previously upheld in its main judgment in the Satender Kumar Antil case.
Arguments of the Parties
Submissions by the State of Haryana (Applicant): The counsel for the State of Haryana argued that its application for modification should be allowed for several reasons:
- A notice under Section 35 BNSS is merely an intimation to a person to join an investigation, not an arrest warrant. Using electronic communication would ensure the person does not evade service and would save precious state resources.
- The BNSS itself embraces technology. The proviso to Section 64(2) permits court summons to be served electronically. If a court summons can be served this way, a police notice, which is less stringent, should also be allowed.
- Section 71 of the BNSS, which allows service of summons on witnesses via electronic communication, is an overriding provision. A notice under Section 35 falls into a similar category.
- The overall legislative intent, as reflected in Section 530 of the BNSS, is to streamline criminal proceedings through technology. Excluding Section 35 notices from this framework would be an anomaly.
- The Delhi High Court judgments relied upon were delivered when the CrPC, 1973 was in force, which did not have provisions for electronic service. The new BNSS, however, does, making those judgments inapplicable.
Submissions by the Amicus Curiae: The learned Senior Counsel, acting as Amicus Curiae, opposed the application, submitting that:
- Service of notice via WhatsApp or other electronic modes is not a method contemplated under Section 35 or Chapter VI of the BNSS.
- The provision for electronic service of summons in Section 64(2) is conditional upon the summons bearing the image of the Court’s seal. A notice under Section 35 is issued by an investigating agency, not a court, and thus does not meet this requirement.
- Section 530 of the BNSS, which permits electronic modes for “trials, inquiries and proceedings,” deliberately excludes “investigations.” Since a Section 35 notice is part of the investigation stage, this section does not apply.
- Given that a breach of a Section 35 notice can lead to “arrest and deprivation of the liberty of an individual,” it is imperative that such a notice is served in person and not through electronic means.
Court’s Analysis and Findings
The Supreme Court conducted a detailed analysis of the relevant provisions of the BNSS, 2023 to arrive at its decision.
Legislative Intent and Personal Liberty: The bench acknowledged that the BNSS has recognized electronic communication, but observed that the legislature “has clearly demarcated the extent of permissible usage.” It pointed to Section 530, which allows electronic modes for trials and other court proceedings but consciously omits “investigations.”
The Court held that a notice under Section 35 is not a mere procedural formality but carries a “substantive element” tied to the right to liberty under Article 21 of the Constitution. The judgment states:
“Service of a notice under Section 35 of the BNSS, 2023 needs to be carried out in a manner that protects this substantive right, as non-compliance with the notice can have a drastic effect on the liberty of an individual.”
The Court concluded that the exclusion of Section 35 notices from the scope of electronic service was a deliberate choice by the legislature.
“Hence, it is manifestly apparent that the Legislature has particularly specified the circumstances in which usage of modes of electronic communication is permissible, being circumstances which do not have a bearing on the liberty of an individual.”
Distinction Between Police Notice and Court Summons: The Court rejected the State of Haryana’s argument comparing a police notice to a court summons. It drew a clear line between an “investigation” conducted by a police officer and an “inquiry” or “judicial proceeding” conducted by a court.
The judgment clarifies:
“A summons issued by a Court is a judicial act, whereas a notice issued by the Investigating Agency is an executive act. Hence, the procedure prescribed for a judicial act cannot be read into the procedure prescribed for an executive act.”
Furthermore, the Court noted that while the BNSS does permit the investigating agency to use electronic communication for certain tasks—like summoning documents (Section 94) or forwarding reports to the Magistrate (Section 193)—these are procedures that do not directly impact an individual’s liberty. This selective inclusion, the Court reasoned, reinforces the deliberate exclusion for Section 35 notices.
Decision
Based on this reasoning, the Supreme Court found no merit in the State of Haryana’s application. The bench concluded:
“Hence, when viewed from any lens, we are unable to convince ourselves that electronic communication is a valid mode of service of notice under Section 35 of the BNSS, 2023, since its conscious omission is a clear manifestation of the legislative intent. Introducing a procedure into Section 35 of the BNSS, 2023, that has not been specifically provided for by the Legislature, would be violative of its intent.”
The Court dismissed IA No. 63691 of 2025 and confirmed its earlier order dated January 21, 2025, thereby upholding the bar on serving police notices under Section 35 BNSS via electronic modes.
