A recent order of the Supreme Court in Satender Kumar Antil v. CBI, passed on January 21, prohibits police from sending notices by WhatsApp, and directs states and union territories to issue orders to the police to ensure that the service of notice under Section 41-A of the Code of Criminal Procedure (CrPC), 1973 and Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) should be strictly in accordance with those laws.
The order is likely to have far-reaching consequences to protect innocent citizens from cyber crime.
The directions of a Bench of Justices MM Sundresh and Rajesh Bindal, though appearing to be operating in a narrow sphere, will in reality have a far-reaching and healing effect towards protecting individuals’ rights, bringing uniformity in procedure and ensuring strict compliance of legal and constitutional safeguards.
Similar directions were passed restricting the use of WhatsApp to send notices by police officials under Section 160 of CrPC/Section 179 of BNSS and Section 175 CrPC/Section 195 BNSS.
Of late, there has been a flurry of cases of ‘digital arrest’ where unsuspecting individuals (often senior citizens) are subjected to video calls and WhatsApp messages by fraudsters claiming to be police officers and subjected to extortion. Just last week, the High Court of Rajasthan took note of this alarming situation, and has taken suo motu cognizance in the matter of tackling the issue of ‘digital arrest scams’, cyber crimes and saving innocent people from losing their money and livelihood.
There is an immediate need to widely publicise and create awareness about this landmark ruling so as to prevent innocent individuals falling prey to such scams, which have proliferated over WhatsApp or by email. Once the public at large is made aware that any electronic means including WhatsApp cannot be used by the police to serve notices on them, such scams will automatically reduce; an excellent example of preventing crime by educating the public of a vital Court decision.
In a different sphere, the directions of the Supreme Court ensuring that individuals receive statutory notices through reliable and verifiable means avoids the risk of missed or ignored notices which can unnecessarily lead to arrest. Delivery of such notices by the legally prescribed mode - that is in person - would also make it difficult for individual notices to justify non-compliance with such a notice, thereby making investigations more efficient.
Further, the directions issued by the Supreme Court will also work towards protecting individuals' right to privacy, which is already held to be a fundamental right. In this digital world, rights of individuals to control their personal information and to be protected from unwarranted intrusions into their private life is increasingly a critical concern. By preventing the use of personal communication tools for official legal communications, the Supreme Court’s directions ensure that personal data is protected, and that individuals do not suffer any vexatious intrusions into their private lives.
Though the present ruling appears to pertain to only the service of police notices by official channels as mandated by law, its many facets posit a step towards clarity and transparency in legal proceedings by making officials accountable, notices well-documented, and cutting down the scope for unnecessary litigation, thereby making the investigative process more expedient. It not only protects the right to privacy of citizens, but can also serve as a useful tool for preventing vulnerable persons falling prey to scams, thereby serving the cause of justice in far-reaching ways.
Prerna Singh is a lawyer practicing before the Supreme Court.