The Supreme Court has directed that appearance notices issued to accused persons or suspects under Section 41A of the Code of Criminal Procedure (or Section 35 of the Bharatiya Nagarik Suraksha Sanhita) must not be served via WhatsApp or other electronic means.
The Court stressed that such methods cannot be considered valid alternatives to the service modes prescribed under the CrPC, 1973, or BNSS, 2023.
Additionally, the Court mandated 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 strictly adhere to the service methods outlined in 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 focused on establishing guidelines to prevent unnecessary arrests and to facilitate bail for deserving undertrial prisoners. The Court has been regularly reviewing the matter to ensure that States and High Courts comply with its directives.
Senior Advocate Siddharth Luthra, acting as amicus curiae, brought to the Court’s attention the practice 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 permits 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 pointed out that in its 2022 judgment in Satender Kumar Antil, the Supreme Court upheld the Delhi High Court’s decision in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors., which clarified that serving notices via WhatsApp or other electronic means is not permissible under Section 41A of the CrPC, 1973 (now Section 35 of the BNSS, 2023), as it fails to comply with the procedures specified in Chapter VI of the CrPC, 1973. Therefore, he contended that the police must strictly follow the prescribed mode of service under Section 41A of the CrPC, 1973/Section 35 of the BNSS, 2023, and avoid bypassing these requirements through electronic methods like WhatsApp.
He further observed that although the new criminal code (BNSS) permits the use of electronic means for conducting trials and inquiries, it does not authorize the service of electronic notices under Section 35 of the BNSS.
Against 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 hold monthly meetings of their respective Committees for “Ensuring the Implementation of the Decisions of the Apex Court.” These meetings are intended to ensure compliance with the Supreme Court’s past and future directions at all levels and to verify that monthly compliance reports are being submitted by the concerned authorities.
The Registrar Generals of the High Courts and the Chief Secretaries of all States and Union Territories were instructed to implement these directions within three weeks from January 21. Furthermore, Compliance Affidavits must be submitted within four weeks from January 21 to the designated email address: complianceinantil@gmail.com.
The matter is set for further review on March 18, 2025, to evaluate compliance.
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