
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:
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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.
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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.
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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 Comment: 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.
This update was released on 30 Jan 2025.
The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.
Legal Update Team
MANSUKHLAL HIRALAL & COMPANY
Advocates, Solicitors and Notaries
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