Bharatiya Nagarik Suraksha Sanhita, 2023. (BNSS)
S. 35 : When police may arrest without warrant-Notice by Investigating Agency-Inquiry-Electronic communication-Liberty of individual involved-Cannot be served via WhatsApp or electronic communication-Standing order must follow CrPC/BNSS modes only -Application to modify earlier order rejected-State must ensure personal service-Application dismissed. [S. 2(i), 2(k), 35(3), 35(4), 35(5), 35(6),39, 63, 64(2), 71, 94, 193, 530, CrPC, 1973, S. 41A, Art. 21, 32, 136]
The State of Haryana filed an interim application seeking modification of the Supreme Court’s earlier order dated 21.01.2025 in Satender Kumar Antil v. CBI, directing all States to ensure that notices under Section 41-A CrPC/Section 35 BNSS are served only as per the legally prescribed modes (i.e., physical service), and not via WhatsApp or other electronic means.
The State argued that under the new BNSS, Sections 64 and 71 permit service of summons via electronic communication, and this should also apply to notices under Section 35 BNSS, which merely require the accused to join investigation and do not result in immediate arrest. It further relied on Section 530 BNSS, which enables electronic modes for various proceedings.
Now, the issue for consideration before the Hon’ble Court is whether the usage of electronic communication can be extended to the procedure governing the service of a notice under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, particularly in light of the legislative scheme and the fundamental right to personal liberty under Article 21 of the Constitution?
The Supreme Court rejected this contention, holding that Section 35 of BNSS involves the liberty of an individual, since non-compliance with the notice could lead to arrest. The BNSS specifically excludes service of notice under Section 35 via electronic means, unlike Court-issued summons under Sections 63, 64, and 71. Section 530, which permits electronic modes for trials, inquiries, and proceedings, does not cover investigation. The procedure for a judicial act (like summons by court) cannot be equated with that for an executive act (like notice by police). The only instances where electronic communication is permitted for police under BNSS are for summons for documents (S.94) and reporting to magistrates (S.193)—not for notice of appearance under S.35.
The Court emphasized that the right to life and liberty under Article 21 demands strict compliance with the procedure prescribed by law. Allowing electronic service for such crucial notices, without explicit legislative backing, would violate legislative intent and potentially harm due process.
“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,” the Court said. The application was dismissed, and the earlier direction was reaffirmed. (IA No. 63691/2025 in MA No. 2034/2022 in MA No. 1849/2021 in SLP (CRL.) No. 5191/202 Dt. 16-07-2025)
State of Haryana v. Satender Kumar Antil & Anr.(SC) 2025 INSC 909, www.itatonline.org]
[Coram : Hon’ble Shri Justice M. M. Sundresh and Hon’ble Shri Justice Nongmeikapam Kotiswar Singh]