The Apex Court has directed that police should not serve notice for appearance to the accused/suspect as per Section 41A of the Code of Criminal Procedure (Section 35 of the Bharatiya Nagarik Suraksha Sanhita) through WhatsApp or other electronic modes.

The Court made it amply clear that the service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to the mode of service recognised and prescribed under the CrPC, 1973/BNSS, 2023.

The Court also directed that notices under Section 160 of CrPC/Section 179 of BNSS, 2023 and Section 175 of CrPC/Section 195 of BNSS to the accused persons or otherwise can be issued only through the mode of service as prescribed under the CrPC/BNSS.

A bench passed these directions in the Satender Kumar Antil v. CBI case in which it had issued directions to prevent unnecessary arrests and to ease the grant of bail to deserving undertrial prisoners. The Court had been posting this matter from time to time to monitor the compliance of the States and High Courts with the directions.

The amicus curiae in the matter, flagged the issue of police serving Section 41A CrPC notice through WhatsApp. He referre to a Standing Order dtd. 26.01.2024 issued by the office of the DGP, Haryana which permits Police Officers to serve notices under Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 in person or through WhatsApp, e-mail, SMS or any other electronic mode.

He pointed out that in the 2022 judgment in Satender Kumar Antil, the Supreme Court had upheld the Delhi High Court's judgment in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors. which held that that notice served through WhatsApp or other electronic modes is not contemplated as a mode of service under Section 41-A of CrPC, 1973 (which is now Section 35 of BNSS, 2023) since the same is not in accordance with Chapter VI of CrPC, 1973. Hence, he submitted that the police machinery must not circumvent the mandate of Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 by serving notices through WhatsApp or other electronic modes, instead of following the normal mode of service.

He also pointed out that though the new crimnial code (BNSS) permits the use of electronic means to conduct trials/enquiries, it does not permit service of e-notice under Section 35 BNSS.

In this backdrop, the Court issued the following directions :

a) All the States/UTs must issue a Standing Order to their respective Police machinery to issue notices under Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 only through the mode of service as prescribed under the CrPC, 1973/BNSS, 2023. It is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to the mode of service recognised and prescribed under the CrPC, 1973/BNSS, 2023.

b) All the States/UTs while issuing Standing Orders to their respective Police machinery relating to Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 must be issued strictly in accordance with the guidelines issued by the Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors., 2021 SCC Online Del 5629 and Amandeep Singh Johar v. State (NCT Delhi), 2018 SCC Online Del 13448, both of which were upheld by this Court in Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51.

c) All the States/UTs must issue an additional Standing Order to their respective Police machinery to issue notices under Section 160 of CrPC, 1973/Section 179 of BNSS, 2023 and Section 175 of CrPC, 1973/Section 195 of BNSS, 2023 to the accused persons or otherwise, only through the mode of service as prescribed under the CrPC, 1973/BNSS, 2023.

The Court also directed all the High Courts to hold meetings of their respective Committees for “Ensuring the Implementations of the Decisions of the Apex Court” on a monthly basis, in order to ensure compliance of both the past and future directions issued by this Court at all levels, and to also ensure that monthly compliance reports are being submitted by the concerned authorities.

The Registrar Generals of the respective High Courts and Chief Secretaries of all the States/UTs were directed to ensure that due compliance of the directions within a period of 3 weeks from January 21, and that the Compliance Affidavits be mailed within a period of 4 weeks from January 21 to the dedicated email address for this purpose at complianceinantil@gmail.com.