Pranav B Prem

In a significant ruling, the Supreme Court of India has categorically held that police authorities must not serve notices under Section 41A of the Code of Criminal Procedure, 1973 (CrPC) or Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) through WhatsApp or other electronic modes. A Bench comprising Justices M.M. Sundresh and Rajesh Bindal issued this directive in the case of Satender Kumar Antil v. CBI & Anr., reinforcing compliance with prescribed procedural safeguards under the respective laws.

Service of Notices Must Follow Statutory Modes

The Supreme Court expressly stated, "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." This reiterates the need to adhere strictly to procedural norms for serving notices to accused persons under the criminal justice system. Additionally, the Bench clarified that notices under Sections 160 and 175 of CrPC (now Sections 179 and 195 of BNSS) must also follow the modes prescribed under the respective statutes.

Amicus Curiae Flags Concerns

Senior Advocate Siddharth Luthra, acting as the Amicus Curiae, raised concerns about police officers circumventing statutory requirements by serving notices through electronic means. Referring to a Standing Order dated January 26, 2024, issued by the Director General of Police (DGP), Haryana, he highlighted that it permitted the service of Section 41A notices via WhatsApp, email, SMS, or other digital platforms. Luthra emphasized that this practice undermines the statutory mandate under Chapter VI of the CrPC/BNSS.

The Amicus further pointed out that while Section 532 of BNSS allows the use of electronic means for conducting trials and inquiries, it does not extend to the service of notices under Section 35 BNSS. He drew attention to the precedent set by the Delhi High Court’s judgments 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 judgments, upheld by the Supreme Court in Satender Kumar Antil v. CBI & Anr., confirmed that service of Section 41A notices through electronic modes is invalid.

In this backdrop, the Court issued the following directions :

1. 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.

2. 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.

3. 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. The matter will be next considered on March 18, 2025, for compliance.

Cause Title: Satender Kumar Antil v CBI

Case No: Miscellaneous Application No. 2034/2022 in MA 1849/2021 in SLP(Crl) No. 5191/2021

Date: January-21-2025

Bench: Justice M.M. Sundresh and Justice Rajesh Bindal

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