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Synopsis

The Supreme Court has said no notice can be issued by the police to the accused or witnesses by Whatsapp or other electronic means.

The apex court directed all the States and the Union Territories to issue a standing order to their respective police machinery to issue notices under Section 41-A of CrPC, 1973 or Section 35 of BNSS, 2023 only through the mode of service as prescribed under the statute.

"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," a bench of Justices M M Sundresh and Rajesh Bindal said.

The court told 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 Vs Vijayanta Arya (DCP) & Ors, (2021) and Amandeep Singh Johar Vs State (NCT Delhi), (2018), both of which were upheld by this court in Satender Kumar Antil Vs CBI & Anr (2022).

"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 bench said.

The court issued its directions in the case of Satender Kumar Antil after senior advocate Sidharth Luthra, acting as amicus curiae, flagged off instances where notices under Section 41-A of CrPC, 1973 were sent to the accused through WhatsApp, but the accused did not appear before the Investigating Officers and no action was taken against such erring officers.

He also brought to the attention of the court a Standing Order issued by the office of the DGP, Haryana on January 26, 2024 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.

Luthra further submitted that this Court in Satender Kumar Antil case, approved and upheld the judgment passed by the Delhi High Court in Rakesh Kumar Vs Vijayanta Arya wherein it was held 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 this is not in accordance with Chapter VI of CrPC, 1973 (which is now Chapter VI of BNSS, 2023) and hence cannot be treated as a valid mode of serving notice under Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023, he said.

"Therefore, 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," the amicus curiae said.

The senior counsel also made a reference to Section 532 of BNSS, 2023 which states that all trials, inquiries and proceedings under BNSS, 2023 may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.

"Even that section does not permit notice under Section 35 of BNSS, 2023 to be served through WhatsApp or other electronic modes," he said.

Accepting the suggestion, the court directed the Registrar Generals of the respective High Courts and Chief Secretaries of all the States/UTs to ensure that due compliance of the directions is made within a period of three weeks and filing of the Compliance Affidavits within a period of four weeks.

Approving of his another suggestion, the court said, "All the High Courts must 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."

In his submission, the amicus curiae sought time to consult and deliberate with the counsel for the NALSA about the feasibility of coming up with an effective and efficient proposal for the release of UTPs on personal bonds after verification of the Aadhaar Card details.

Case Title: Satender Kumar Antil Vs Central Bureau of Investigation & Anr