CRIMINAL LAW UPDATE: LEGAL NOTICES VIA WHATSAPP NOT PERMISSIBLE, RULES SUPREME COURT

Background:?

The Supreme Court in Satendra Kumar Anil v. Central Bureau of Investigation has reiterated? that notices under Section 41-A of the Criminal Procedure Code, 1973 (“CrPC”), and Section? 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), cannot be served through? WhatsApp or any other electronic messaging platforms.?

Facts:?

The Haryana Police Standing Order, issued on 26 January 2024, permitted police officers to? serve notices under Section 41A of the CrPC or Section 35 of the BNSS through various means,? including in person, WhatsApp, email, SMS, or other electronic communication. In accordance? with this directive, the police authorities served a notice under the relevant provisions via? WhatsApp to the accused. However, the accused failed to appear before the investigating? officers, and no action was taken against the officers for their inaction in ensuring compliance.?

Issue for consideration:?

Whether the Service of Notice under Section 41-A of the CrPC and Section 35 of the BNSS is? to be made in person, as contemplated under the statutes, and not through WhatsApp or? other electronic modes.??

Held:?

The Hon'ble Court noted that investigative agencies and police frequently issue notices via? WhatsApp, causing accused persons to miss appearances due to non-receipt or lack of? acknowledgment. It also referred to Satender Kumar Antil v. CBI & Anr., (2022) 10 SCC 51, wherein the Hon'ble Court reaffirmed that electronic service is not valid under Section 41-A? of CrPC or Section 35 of BNSS, 2023. It mandated strict adherence to legal methods such as? personal delivery or registered post to ensure due process.?

The Hon'ble Court also issued the following directions to all states and directed them to file? their compliance affidavits within a period of 4 weeks:?

i. 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 the service of notice through WhatsApp or other electronic modes cannot be? considered or recognized as an alternative or substitute to the mode of service? recognized and prescribed under the CrPC, 1973/BNSS, 2023.

ii. 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.?

iii. 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?

MHCO Comments:?

Reaffirming the importance of procedural safeguards, the Supreme Court has categorically? ruled out WhatsApp and similar platforms as valid methods for serving statutory notices. This? decision aims to prevent wrongful arrests and ensure that accused persons receive proper? legal communication through established channels, resulting in a reduction of unintentional? non-compliance by the recipients of the notices.?

The views expressed in this update are personal and should not be construed as any legal? advice. Please contact us for any assistance.