NEW DELHI: The Supreme Court has rejected the Haryana government’s application to be allowed to serve police summons electronically via WhatsApp, and reiterated its direction to the police to serve physical notices to individuals required for investigation.
“We are unable to convince ourselves that electronic communication is a valid mode of service of notice under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, since its conscious omission is a clear manifestation of the legislative intent,” a bench of justices MM Sundresh and N Kotiswar Singh said.
The order was passed on July 16, but uploaded to the top court’s website on Wednesday.
The state had approached the top court challenging the January 21 order passed by the top court in Satinder Kumar Antil v CBI, where the court sought to address gaps in safeguarding the rights of accused facing investigation under various crimes.
The bench emphasised that any breach of a notice issued by police under Section 41A of the erstwhile Code of Criminal Procedure, which requires a person to join an investigation, has serious consequences, as it could lead to arrest and deprive individuals of their personal liberty.
The court arrived at this finding with the assistance given by senior advocate Siddharth Luthra as amicus curiae.
Haryana argued that while electronic means were prescribed under BNSS for issuing court notices and summoning witnesses, the same should also be applied to Section 35, as essentially what is required of the individual is to participate in the investigation and not to be arrested.
However, Luthra stated that a notice served through WhatsApp or other electronic communication modes is not contemplated as a mode of service under Section 35 of the BNSS. He referred to provisions of BNSS that pertain to electronic means, but they are specifically excluded from the process of investigating a case.
The bench noted these submissions and said, “ Introducing a procedure into Section 35 of the BNSS, 2023, that has not been specifically provided for by the legislature, would be violative of its intent.”
The court further stated, “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 from encroachment by the relevant authority, and therefore, any attempt to interpret the provision as a mere procedural one would amount to rewriting the provision itself.”
It concluded that service of a notice under Section 35 of the BNSS, 2023 needs to be carried out in a manner that protects this substantive right, as non-compliance with the notice can have a drastic effect on the liberty of an individual.
The January 21 order held that service of the section 41-A notices through WhatsApp or other modes of electronic communication, cannot be considered or recognised as an alternative or substitute to the mode of service recognised and prescribed under the CrPC or BNSS.
Haryana had referred to a proviso under Section 64(2) of BNSS, which permits the service of court summons through electronic mode. Similarly, Haryana pointed out that Section 71 allowed electronic mode for calling witnesses.
But the court underlined a distinction. “The proviso to Section 64(2) of the BNSS, 2023 provides a discretion of also serving summons by electronic communication, only when they bear the image of the court’s seal.” On the comparison drawn with Section 71 of the BNSS, the decision noted that the same has no immediate bearing on the liberty of an individual in case of any non-compliance. However, breach of notice under Section 35 of the BNSS, would have an immediate bearing on the liberty,” the court said.
