The Supreme Court recently ruled that notice issued by police under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) must be served through physical means alone as prescribed in the statute, and not via WhatsApp [Satendar Kumar Antil vs. CBI].
The Bench of Justices MM Sundresh and N Kotiswar Singh rejected the use of WhatsApp or other electronic communication for serving such notices, holding that the mode of service has direct implications on an individual’s liberty and cannot be compromised.
The order was passed on July 16 while dismissing an application filed by the State of Haryana seeking modification of the Court’s earlier directions issued on January 21 this year.
In the January order, the Court had directed all States and Union Territories to issue Standing Orders to their respective police departments mandating the issuance of notices under Section 41A of the Code of Criminal Procedure (CrPC) or Section 35 of the BNSS only through the modes of service prescribed by law.
In its plea, Haryana argued that electronic communication should be permitted for the service of such notices in order to prevent evasion and conserve police resources.
The State relied on Sections 64(2), 71 and 530 of the BNSS to argue that the statute allows summons to be served electronically in some instances, and that the same principle should extend to notices issued under Section 35.
However, the Court held that the legislative scheme of the BNSS draws a clear distinction between procedures applicable to courts and those applicable to police investigations.
"While interpreting a statute, the legislative intent is to be gathered from a plain and simple reading of the language employed in the provisions, in a purposive manner, thereby upholding the objective behind the enactment," it said.
The Court categorically held that a notice under Section 35 of the BNSS, which can lead to arrest upon non-compliance, cannot be equated with a summons issued by a court.
"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," it observed.
The Bench noted that Sections 63, 64 and 71 of the BNSS permit service of court-issued summons through electronic means only when specific safeguards like the image of the court’s seal are in place. These provisions do not apply to Section 35 notices which are issued by police agencies and not by courts, the Bench said.
Referring to the role of Section 35 within the BNSS framework, the Court said:
“Section 35(3) of the BNSS, 2023 mandates the service of a notice whenever the Investigating Agency, on the basis of a reasonable complaint, credible information or suspicion, determines that a person may have committed a cognizable offence, but does not deem the arrest of such person necessary.”
Crucially, the Court pointed out that non-compliance with such a notice can result in arrest under Section 35(6) and therefore, the manner of service must uphold the constitutional right to personal liberty.
“The protection of one’s liberty is a crucial aspect of the right to life guaranteed to each and every individual, under Article 21 of the Constitution of India. The procedure encapsulated in Section 35(6) of the BNSS, 2023, seeks to secure this fundamental right,” the Court said.
Service of notice under Section 35 of the BNSS needs to be carried out in a manner that protects this substantive right as non-compliance with the notice can have drastic effects on the liberty of an individual, the Court ruled.
The Court also rejected Haryana’s argument based on Section 530 of the BNSS, which permits trials and proceedings to be held in electronic mode. The Court held that Section 530 applies only to trials, inquiries and court proceedings and does not extend to police investigation.
Senior Advocate Siddharth Luthra, appearing as amicus curiae, opposed Haryana’s plea by submitting that service of notice under Section 35 of the BNSS through WhatsApp or electronic means is not a valid mode of service under the statute.
He underscored that since breach of a Section 35 notice could lead to arrest, its service must be personal and physical to safeguard the individual’s constitutional right to liberty.
The Supreme Court agreed with the amicus curiae and echoed these concerns in its reasoning. It held that Section 35 notices unlike court-issued summons, are executive in nature and have an immediate bearing on liberty.
The Court also accepted the amicus’ contention that the omission of 'investigation' from Section 530 was deliberate and indicative of legislative intent.
Finally, the Court emphasised that wherever the BNSS permits electronic communication during investigation such as in Sections 94 and 193 dealing with production of documents and filing of police reports, the provision is explicit.
Since no such allowance is made in Section 35, the Court held that introducing electronic service into the provision would be impermissible.
[Read Order]