Court’s Decision
The Supreme Court, in its detailed judgment dated July 16, 2025, dismissed the State of Haryana’s application seeking modification of its previous order that mandated service of notices under Section 41-A of the Code of Criminal Procedure, 1973 (now Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023) to be effected strictly in accordance with the mode prescribed by law, and not via WhatsApp or other electronic means.
The Court held that “liberty of an individual cannot be compromised by allowing service of crucial notices through informal or technologically insecure means” and emphasized that the procedure laid down under BNSS, 2023, must be followed scrupulously.
Facts
In a previous order dated January 21, 2025, the Supreme Court had directed all States and Union Territories to issue Standing Orders to their police departments mandating that notices under Section 41-A of CrPC/Section 35 of BNSS be served only through methods recognized by the statute, rejecting informal modes such as WhatsApp.
The State of Haryana, via IA No. 63691 of 2025, sought a modification of that order on the premise that electronic service ensures efficiency and reduces wastage of State resources, especially when the notice is merely an intimation and not an arrest warrant.
Issues
- Whether the service of notice under Section 35 of the BNSS, 2023, can be validly effected through electronic means like WhatsApp.
- Whether the provisions of BNSS, 2023 contemplate such electronic service by the Investigating Agencies.
- Whether the Court’s earlier direction requiring strict adherence to procedural service is open to reconsideration in light of technological advances.
Petitioner’s Arguments (State of Haryana)
The State contended that the notice under Section 35 of BNSS is merely a procedural intimation and does not immediately affect the liberty of a person. Therefore, service via WhatsApp or email should be permitted.
Relying on Sections 64(2) and 71 of the BNSS, the State argued that the statute already permits service of summons via electronic communication under certain conditions. The same logic, they submitted, should apply to notices under Section 35.
Further, Section 530 of BNSS, 2023 allows trials and inquiries to be held through electronic means, reflecting the legislative intent to adopt modern technology. The State emphasized that the existing judgments—particularly Rakesh Kumar v. Vijayanta Arya and Amandeep Singh Johar v. State (NCT Delhi)—were based on CrPC, 1973, which did not contemplate electronic service. Therefore, they should not bind BNSS-era interpretation.
Respondent’s Arguments (Amicus Curiae)
The Amicus Curiae strongly opposed the modification. They argued that Section 35 notices are distinct from court summons because non-compliance can result in arrest, and therefore, their service must be reliable and personal.
They stressed that the use of electronic communication is permitted only in defined situations under BNSS, such as Section 64 (summons with court seal), Section 71 (witness summons), and Section 193 (submission of investigation reports), none of which pertain to Section 35.
They emphasized that investigation has been deliberately excluded from Section 530’s coverage of procedures permissible through electronic means. This was a conscious legislative omission, particularly because arrest may follow non-compliance.
Analysis of the Law
Section 35 of BNSS provides a statutory safeguard against arbitrary arrest, requiring issuance of a notice where arrest is not immediately warranted. The provision encapsulates a delicate balance between investigative powers and individual liberty under Article 21 of the Constitution.
While Section 530 permits electronic mode for trials, inquiries, and proceedings, the Court held that investigation is not included within its ambit. Similarly, while Sections 64 and 71 allow electronic service, they apply specifically to summons bearing a court seal or issued by a court—not investigative notices.
The Court emphasized that a purposive interpretation of the BNSS is required, one that respects its constitutional ethos of protecting individual liberty. Introducing electronic service for Section 35 notices would amount to judicial legislation in clear defiance of legislative intent.
Precedent Analysis
The Court reaffirmed its earlier holding in Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51, where the focus was to curb unnecessary arrests and ensure procedural compliance for notices under Section 41-A CrPC.
The guidelines laid down in Rakesh Kumar v. Vijayanta Arya and Amandeep Singh Johar v. State (NCT Delhi) were also upheld, wherein Delhi High Court mandated that Section 41-A notices be served strictly as per the statutory procedure. These judgments, although delivered under CrPC, remain valid as the BNSS retains the same constitutional fabric.
Court’s Reasoning
The Court reasoned that non-compliance with a Section 35 notice may lead to arrest, and therefore, any laxity in service impacts the core constitutional right to life and liberty under Article 21.
It held that summons and notices operate differently—summons are judicial in nature while notices under Section 35 are executive acts. The protections for executive action must be higher when they potentially affect liberty.
The Legislature’s silence on permitting electronic service for Section 35 notices—despite specifically allowing it elsewhere—demonstrates an intentional exclusion, not an oversight. Courts cannot override this through interpretative expansion.
Conclusion
The Supreme Court unequivocally rejected the request to modify its previous directions. It held that:
“Electronic communication is not a valid mode of service of notice under Section 35 of the BNSS, 2023, since its conscious omission is a clear manifestation of legislative intent.”
Consequently, the earlier direction mandating service only through statutorily recognized methods remains binding on all States and Union Territories.
Implications
- The judgment strengthens procedural safeguards for individuals in criminal investigations, reinforcing Article 21 protections.
- Police departments across India must comply with the formal modes of service under BNSS and cannot resort to WhatsApp, emails, or other informal platforms for issuing Section 35 notices.
- The ruling establishes a clear line between judicial and executive acts under the new criminal law framework, emphasizing adherence to legislative prescriptions.
Cases Referred
- Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51
Upheld guidelines to prevent arbitrary arrest under Section 41-A CrPC. - Rakesh Kumar v. Vijayanta Arya (DCP) & Ors., 2021 SCC OnLine Del 5629
Delhi High Court held that service of Section 41-A notices must follow CrPC procedure. - Amandeep Singh Johar v. State (NCT of Delhi), 2018 SCC OnLine Del 13448
Reinforced that improper service cannot be the basis of arrest; emphasized strict procedural compliance.
These judgments were cited to show that even before BNSS, courts emphasized procedural fidelity in service of notices that may result in arrest.
FAQs
1. Can police serve notices via WhatsApp under the new criminal law?
No. The Supreme Court has categorically held that Section 35 notices must be served as per the procedure laid down in the BNSS, and electronic communication like WhatsApp is not a valid mode.
2. Why is Section 35 notice service treated differently from court summons?
Because non-compliance with Section 35 notices can lead to arrest, affecting the person’s liberty. Therefore, stricter procedural safeguards apply than those for a court-issued summons.
3. Does the BNSS, 2023 allow any electronic communication by the police?
Yes, but only in limited contexts like issuing summons to produce documents (Section 94) or sending final investigation reports to the Magistrate (Section 193). Section 35 is not included.
