Police cannot use WhatsApp or other electronic means for serving notice: SC

New Delhi: The Supreme Court has clarified that the service of notice by the police to the accused through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to the mode prescribed under the Criminal Procedure Code or Bhartiya Nagrik Suraksha Sanhita, 2023.

A bench of Justices M M Sundresh and Rajesh Bindal directed all States and 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 law.

The court accepted the suggestion by senior advocate Sidharth Luthra, who acted as amicus curiae in the matter, that the standing orders in this regard 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).

In its order on January 21, 2025, the court directed all the States and Union Territories to issue an additional standing order to their respective police machinery to issue notices under Section 160 of CrPC, 1973 or Section 179 of BNSS, 2023 and Section 175 of CrPC, 1973 or Section 195 of BNSS, 2023 to the accused persons or otherwise, only through the mode of service as prescribed under the CrPC or BNSS, 2023.

The court's directions were issued in the case of Satender Kumar Antil upon hearing Luthra, who flagged 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 said that the office of the DGP, Haryana issued an order on January 26, 2024, allowing the police officers to serve notices under Section 41-A of CrPC, 1973 or Section 35 of BNSS, 2023 in person or through WhatsApp, e-mail, SMS or any other electronic mode.

He said that this court previously in the Satender Kumar Antil case, approved and upheld the judgment passed by the Delhi High Court which has held that notice served through WhatsApp or other electronic modes is not contemplated as a mode of service.

"As 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.

Luthra asserted thatb the police machinery must not circumvent the mandate of law by serving notices through WhatsApp or other electronic modes, instead of following the normal mode of service.

He also said that Section 532 of BNSS, 2023 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 added.