Supreme Court holds police cannot serve BNSS Section 35 notices via WhatsApp or other electronic modes

A bench of Justices M. M. Sundresh and Nongmeikapam Kotiswar Singh heard an application filed by the State of Haryana seeking modification of this Court’s order of 21 January 2025 which directed States and Union Territories to issue Standing Orders requiring that notices under Section 41-A CrPC/Section 35 BNSS be served only by the modes of service prescribed under the CrPC/BNSS and that service by WhatsApp or other electronic communication could not substitute those modes.

The Court dismissed IA No. 63691 of 2025 and confirmed the earlier direction. It held that the BNSS, 2023 permitted use of electronic communication in limited, specific contexts and that service of a notice under Section 35 could not be extended to those contexts because of the immediate potential impact on personal liberty. The Court emphasised that “Non-compliance with a notice does not ipso facto mandate arrest,” and that “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.” The Court, in its reasoning, observed: “The Legislature, in its wisdom, has specifically excluded the service of a notice under Section 35 of the BNSS, 2023 from the ambit of procedures permissible through electronic communication, that have been delineated under Section 530 of the BNSS, 2023.” Consequently, the earlier order requiring Standing Orders to police to prescribe service in accordance with CrPC/BNSS modes remained operative.

Background The dispute arose from an application by the State of Haryana seeking modification of this Court’s January 2025 order in proceedings connected to Satender Kumar Antil v. CBI & Anr., which had held that notices under Section 41-A CrPC/Section 35 BNSS must be served by modes recognised by law and that WhatsApp or similar electronic modes could not be treated as a substitute. Haryana argued that provisions in the BNSS—specifically the proviso to Section 64(2), Section 71 and Section 530—recognised electronic communication for service of summons and other procedures, and therefore notices under Section 35 (which inform a person to join investigation) could legitimately be transmitted electronically to prevent evasion and conserve resources.

The Court considered the statutory scheme in detail—Sections 2, 35, 63, 64, 71, 94, 193 and 530 of the BNSS, 2023—and distinguished judicial summons (which the statute permitted to be in electronic form bearing the Court’s seal or image of seal) from executive notices issued by investigating agencies. The Court noted that Section 530 allowed trials, inquiries and proceedings to be held in electronic mode in specified respects, and that Sections 94 and 193 permitted limited electronic measures during investigation and reporting. However, it found a deliberate legislative omission as to electronic service of Section 35 notices. The Court observed that a notice under Section 35 could have an immediate bearing on liberty—non-compliance exposed the recipient to arrest under Section 35(6)—and that the procedural safeguards protecting Article 21 required service in the modes prescribed by the statute. The Court therefore dismissed the modification application, confirmed the earlier direction that Standing Orders issued by States must require service strictly in accordance with the CrPC/BNSS modes, and refused to recognise WhatsApp or similar electronic communication as valid modes of service for Section 35 notices.

Case Details: Case No.: IA No. 63691 of 2025 in MA No. 2034 of 2022 in MA No. 1849 of 2021 in SLP (Crl.) No. 5191 of 2021 (2025 INSC 909) Case Title: Satender Kumar Antil v. Central Bureau of Investigation & Anr. Appearances: For the Petitioner(s): State of Haryana — Counsel not indicated in the order For the Respondent(s): Central Bureau of Investigation & Anr. — Counsel not indicated in the order