In a key ruling, the Supreme Court has said that notice issued by police under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) must be served through physical means alone as prescribed in the statute, and not via WhatsApp.
The Bench of Justices MM Sundresh and N Kotiswar Singh rejected the use of WhatsApp or other electronic communication for serving such notices, holding that the mode of service has direct implications on an individual’s liberty and cannot be compromised. The order was passed on July 16 while dismissing an application filed by the State of Haryana seeking modification of the Court’s earlier directions issued on January 21 this year.
In the January order, the Court had directed all States and Union Territories to issue Standing Orders to their respective police departments mandating the 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 Court categorically held that a notice under Section 35 of the BNSS, which can lead to arrest upon non-compliance, cannot be equated with a summons issued by a court. Referring to the role of Section 35 within the BNSS framework, the Court said:
“Section 35(3) of the BNSS, 2023 mandates the service of a notice whenever the Investigating Agency, on the basis of a reasonable complaint, credible information or suspicion, determines that a person may have committed a cognizable offence, but does not deem the arrest of such person necessary.”
Senior Advocate Siddharth Luthra, appearing as amicus curiae, opposed Haryana’s plea by submitting that service of notice under Section 35 of the BNSS through WhatsApp or electronic means is not a valid mode of service under the statute.
He underscored that since breach of a Section 35 notice could lead to arrest, its service must be personal and physical to safeguard the individual’s constitutional right to liberty.
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