Police can't serve Section 35 BNSS notices via WhatsApp: SC

The police must serve notices under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) through physical means alone, and not using WhatsApp, the Supreme Court has ruled.

Dismissing an application filed by the Haryana Government seeking modification of the top court’s January 21 directions, a Bench of Justice MM Sundresh and Justice N Kotiswar Singh said the summons issued by the police/investigating agency to an accused for appearance as per Section 35 of the BNSS can’t be served electronically.

In its July 16 order, the Bench noted that the mode of service of notice/summons has direct implications on an individual’s liberty which can’t be compromised.

“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... The procedure encapsulated in Section 35(6) of the BNSS, 2023, seeks to secure this fundamental right,” the Bench said.

Earlier, it had directed all states and union territories to issue Standing Orders to police departments mandating issuance of notices under Section 41A of the Code of Criminal Procedure (CrPC) or Section 35 of the BNSS only through the modes of service prescribed by law. The CrPC was replaced by the BNSS last year.

The Haryana Government had contended that electronic communication should be permitted for the service of such notices to prevent evasion and conserve police resources.

However, interpreting the legislative scheme of the BNSS, the top court said, "While interpreting a statute, the legislative intent is to be gathered from a plain and simple reading of the language employed in the provisions, in a purposive manner, thereby upholding the objective behind the enactment.”

It said a notice under Section 35 of the BNSS, which can lead to arrest upon non-compliance, can’t be equated with a summons issued by a court.

"A summons issued by a court is a judicial act, whereas a notice issued by the Investigating Agency is an executive act. Hence, the procedure prescribed for a judicial act cannot be read into the procedure prescribed for an executive act," the Bench noted.

It said Sections 63, 64 and 71 of the BNSS permitted service of court-issued summons through electronic means only when specific safeguards such as the image of the court’s seal were in place and that these provisions did not apply to Section 35 notices issued by the police and not by courts.