The Supreme Court has instructed that notices for appearance issued to accused or suspects under Section 41A of the Code of Criminal Procedure (Section 35 of the Bharatiya Nagarik Suraksha Sanhita) should not be served via WhatsApp or other electronic means.
The Court emphasized that serving notices through WhatsApp or similar electronic methods cannot be accepted or recognized as a valid alternative to the modes of service prescribed under the CrPC, 1973, or BNSS, 2023.
The Court further directed that notices under Section 160 of the CrPC/Section 179 of the BNSS, 2023, and Section 175 of the CrPC/Section 195 of the BNSS must be issued strictly through the modes of service prescribed under the CrPC/BNSS.
These directions were issued by a bench comprising Justice MM Sundresh and Justice Rajesh Bindal in the case of Satender Kumar Antil v. CBI. The case involved issuing guidelines to prevent unnecessary arrests and facilitate the granting of bail to deserving undertrial prisoners. The Court has been periodically reviewing the matter to ensure compliance by States and High Courts with its directives.
Senior Advocate Siddharth Luthra, serving as amicus curiae in the case, highlighted the issue of police serving Section 41A CrPC notices via WhatsApp. He referred to a Standing Order dated January 26, 2024, issued by the Haryana DGP’s office, which allows police officers to serve notices under Section 41A of the CrPC, 1973/Section 35 of the BNSS, 2023 either in person or through electronic means such as WhatsApp, email, SMS, or other digital platforms.
He highlighted that in its 2022 judgment in Satender Kumar Antil, the Supreme Court upheld the Delhi High Court’s ruling in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors., which clarified that serving notices via WhatsApp or other electronic means is not recognized under Section 41A of the CrPC, 1973 (now Section 35 of the BNSS, 2023), as it does not comply with the procedures outlined in Chapter VI of the CrPC, 1973. Consequently, he argued that the police must adhere to the prescribed mode of service under Section 41A of the CrPC, 1973/Section 35 of the BNSS, 2023, and refrain from bypassing its requirements by using WhatsApp or other electronic methods.
He further noted that while the new criminal code (BNSS) allows the use of electronic means for conducting trials and inquiries, it does not authorize the service of e-notices under Section 35 of the 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 directed all High Courts to convene monthly meetings of their respective Committees for “Ensuring the Implementation of the Decisions of the Apex Court.” These meetings aim to ensure compliance with both past and future directions issued by the Supreme Court at all levels and to confirm that monthly compliance reports are being submitted by the relevant authorities.
The Registrar Generals of the High Courts and Chief Secretaries of all States and Union Territories were instructed to ensure compliance with these directions within three weeks from January 21. Additionally, Compliance Affidavits must be submitted within four weeks from January 21 to the designated email address: complianceinantil@gmail.com.
The matter is scheduled for further review on March 18, 2025, to assess compliance.