Supreme Court: In an application filed by the State of Haryana seeking modification of the order dated 21-01-2025, passed by the Supreme Court, the Court had directed all States and Union Territories to issue Standing Orders to their respective police departments mandating that notices under Section 41-A of the Criminal Procedure Code, 1973 (‘CrPC’), or Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’), be issued only through modes of service prescribed by law.
The division bench comprising MM Sundresh and NK Singh, JJ., dismissed the application and confirmed the impugned order. The Court held that it was not persuaded that electronic communication constituted a valid mode of service of notice under Section 35 of the BNSS, 2023. The deliberate omission of such a provision by the Legislature was construed as a clear indication of its intent. The Court observed that incorporating a procedure into Section 35 of the BNSS, 2023, which had not been expressly provided by the Legislature, would have been contrary to legislative intent
Background
An application was filed by the State of Haryana seeking modification of the order dated 21-01-2025, passed by the Supreme Court in a special leave petition.
By the aforesaid order, the Court had directed all States and Union Territories to issue Standing Orders to their respective police departments mandating that notices under Section 41-A of the Criminal Procedure Code, 1973 (‘CrPC’) or Section 35 of the BNSS be served strictly in the mode prescribed under the CrPC, 1973 or BNSS, 2023.
The Court had held that service of such notices through WhatsApp or other modes of electronic communication could not be treated as a valid alternative or substitute for the service methods recognised and prescribed under the CrPC, 1973 or BNSS, 2023.
It had further held that the Standing Orders must be issued strictly in accordance with the guidelines laid down by the Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) , 2021 SCC OnLine Del 5629, and Amandeep Singh Johar v. State (NCT of Delhi), 2018 SCC OnLine Del 13448, both of which were affirmed by the Supreme Court in Satender Kumar Antil v. CBI & Anr., (2022) 10 SCC 51.
Issue
Whether the usage of electronic communication can also be extended to the procedure governing the service of a notice, contemplated under Section 35 of the BNSS, 2023.
Analysis and Decision
Notices by the investigating agency
The Court observed that the Legislature, keeping in view the extensive reliance on modern means of communication in contemporary times, had recognised electronic communication as a valid mode within the ambit of the BNSS, 2023.
The Court stated that, notably, the Legislature had clearly demarcated the extent to which modes of electronic communication could be utilised under the BNSS, 2023, as was evident from the language employed in Section 530 of the said statute.
The Court highlighted that Section 530 of the BNSS, 2023 provided that all trials, inquiries, and proceedings could be conducted in electronic mode, either through electronic communication or by using audio-video electronic means. It further observed that the categories mentioned under this provision clearly indicated that it was not intended solely for the benefit of the accused but also extended to the complainant and witnesses. Moreover, the use of electronic communication was only one of the available modes, and its application remained discretionary.
The Court noted that the BNSS, 2023, in line with the earlier provisions of the CrPC, 1973, provided for circumstances under which a person could be arrested by the investigating agency without a warrant.
The Court noted that Section 35 of the BNSS, 2023 governs the conditions under which a person may be arrested by the investigating agency without a warrant, aligning with the principles under the CrPC, 1973. The provision aims to safeguard individual liberty and prevent arbitrary arrests. It mandates that if arrest is not necessary despite reasonable suspicion of a cognizable offence, the investigating agency must issue a written notice directing the person to appear (Section 35(3)). Upon receiving such notice, the person is obligated to comply (Section 35(4)). As long as there is compliance, arrest is not permitted unless the agency records specific reasons (Section 35(5)). Even in cases of non-compliance, automatic arrest is not allowed; it remains a matter of discretion and must be justified by the agency as a last resort (Section 35(6)).
The Court concluded that the aforementioned provision incorporates a substantive element, evident from the discretion vested in the Investigating Agency, serving as a crucial safeguard especially in matters concerning an individual’s liberty.
The Court emphasised that protection of an individual’s liberty is a fundamental aspect of the right to life guaranteed under Article 21 of the Constitution of India. The procedure outlined in Section 35(6) of the BNSS, 2023, aims to safeguard this fundamental right from encroachment by the relevant authority. Therefore, any interpretation of this provision as merely procedural would undermine its substantive purpose. Service of a notice under Section 35 of the BNSS, 2023 must be carried out in a manner that preserves this substantive right, as non-compliance with the notice could have severe consequences on an individual’s liberty.
The Court observed that the Legislature, in its wisdom, had specifically excluded the service of a notice under Section 35 of the BNSS, 2023 from the ambit of procedures permitted through electronic communication as delineated under Section 530 of the BNSS, 2023.
It further held that, while interpreting a statute, legislative intent must be ascertained through a plain and purposive reading of the language employed in the provision, in a manner that upholds the objective of the enactment. A plain reading of the BNSS, 2023 made it evident that the Legislature had imposed clear restrictions on the use of electronic communication, limiting it only to certain specified procedures. As such, the use of electronic communication for any other procedure, where it had not been expressly permitted, stood precluded.
The Court stated that this interpretation was supported by the objective sought to be achieved by the BNSS, 2023. As previously highlighted, the essence of Article 21 of the Constitution underpinned the BNSS, 2023, which reflected the laudable aim of safeguarding individual liberty while ensuring effective investigation and adjudication of offences. The restrictions imposed on the use of electronic communication were intended to protect the right to life and personal liberty guaranteed under the Constitution from being infringed during the course of criminal investigations and proceedings.
The Court further held that it was manifestly clear that the Legislature had deliberately specified the limited circumstances in which the use of electronic communication was permissible, namely, situations that did not impact an individual’s liberty.
Summons by the Court
With regard to the permissibility of using electronic communication for the issuance of summons by the Court under the BNSS, 2023, the Court deemed it necessary to examine the nature of proceedings concerning a notice under Section 35 of the BNSS, 2023 vis-à-vis a summons issued under Sections 63, 64, and 71 of the BNSS, 2023.
The Court highlighted the distinction between investigation, inquiry, and judicial proceedings as contemplated under the BNSS, 2023.
The Court noted that the purpose of an investigation conducted by an Investigating Agency was markedly distinct from that of an inquiry or judicial proceedings before a Court. While an investigation aims at uncovering the commission of an offence, an inquiry or judicial proceeding is directed towards the truthful determination of the facts of the occurrence. Therefore, the procedural framework applicable to one could not be read into the other.
The Court further observed that, under Section 63(1) of the BNSS, 2023, a summons issued by a Court must be in writing, in duplicate, signed by the presiding officer of the Court or by such other officer as authorised by the High Court, and must bear the seal of the Court.
It was also noted that the Legislature had introduced a new form of summons under Section 63(2) of the BNSS, 2023, whereby a summons could be issued in encrypted form or through other modes of electronic communication. Such summons must bear the image of the Court’s seal or a digital signature.
The Court observed that Section 64 of the BNSS, 2023 pertained to the manner in which summons was to be served. It specifically addressed Section 64(2), which mandated that, wherever practicable, a summons must be served personally on the person summoned by delivering or tendering one of the duplicate copies of the summons. The proviso to Section 64(2) conferred a discretion to serve summons via electronic communication, but only if such summons bore the image of the Court’s seal in a manner and form as prescribed by the State Government through rules.
From a cumulative reading of Sections 63 and 64 of the BNSS, 2023, the Court held that the argument advanced by the applicant, that Section 64(2) pertained only to system-generated summons such as those issued via the e-Summons App, and therefore required the Court’s seal solely for authenticity—was untenable. The Court clarified that, irrespective of whether the summons was issued under Section 63(1) (physical form) or Section 63(2) (electronic form), it was imperative that the summons bore either the physical seal of the Court or the image of the seal when served.
The Court further noted that Section 71 of the BNSS, 2023 provided for the service of summons on witnesses. It specifically referred to sub-section (1), which permitted a Court issuing summons to a witness to direct that a copy of such summons be served through electronic communication.
The Court rejected the applicant’s contention that a notice under Section 35 of the BNSS, 2023 fell within the same category as a summons under Section 71, and therefore, should also be permitted to be served electronically. It reasoned that the comparison could not be accepted, since non-compliance with a summons under Section 71 did not have any immediate bearing on the liberty of an individual. In contrast, non-compliance with a notice issued under Section 35 could directly impact an individual’s liberty, as outlined under Section 35(6) of the BNSS, 2023.
The Court further observed that a summons issued by a Court under Sections 63 or 71 and a notice issued by an Investigating Agency under Section 35 travelled on entirely different footings. A summons issued by a Court constituted a judicial act, whereas a notice under Section 35 constituted an executive act. Consequently, the procedure applicable to judicial acts could not be read into or applied to executive actions.
Usage of electronic mode in the context of the investigating agency
The Court noted that the BNSS, 2023 did not entirely preclude the use of electronic communication by the Investigating Agency. It observed that the Legislature had clearly envisioned the use of electronic communication during the course of investigation and upon its completion. This was specifically provided for under Sections 94(1) and 193(3) of the BNSS, 2023, which permitted such electronic communication by the Investigating Agency in those contexts.
The Court held that the use of electronic communication by the Investigating Agency had only been permitted for the limited purposes provided under Sections 94 and 193 of the BNSS.
The Court noted that Section 94 pertained to the issuance of summons in electronic form for the production of documents. Section 193 dealt with the use of electronic communication for forwarding the final report to the Magistrate upon completion of the investigation, or for informing the informant or victim about the progress of the investigation. None of these provisions affected the personal liberty of an individual.
Therefore, from any perspective, the Court was not persuaded that electronic communication constituted a valid mode of service of notice under Section 35 of the BNSS, 2023. The deliberate omission of such a provision by the Legislature was construed as a clear indication of its intent. Incorporating a procedure into Section 35 of the BNSS, 2023, which had not been expressly provided by the Legislature, would have been contrary to legislative intent.
For the foregoing reasons, the present application seeking modification of the order dated 21-01-2025, was dismissed. Consequently, the order dated 21-01-2025, passed by the Court, stood confirmed.
[Satender Kumar Antil v. Central Bureau of Investigation, Miscellaneous Application No. 2034/2022 in MA 1849/2021 in SLP(Crl) No. 5191/2021, decided on 16-07-2025]
Advocates who appeared in this case:
For Petitioner(s): Mr. Sidharth Luthra, Sr. Adv. Amicus Curie Mr. Akbar Siddique, AOR Mr. Karl P Rustom Khan, Adv. Mr. Mohd. Osama, Adv. Mr. Mohammad Farman Ashraf, Adv. Mr. Abdul Ahad, Adv.
For Respondent(s): Mr. Suryaprakash V Raju, A.S.G. Mrs. Aishwarya Bhati, A.S.G. Mr. Mukesh Kumar Maroria, AOR Ms. Sairica Raju, Adv. Mr. Annam Venkatesh, Adv. Ms. Priyanka Das, Adv. Mr. Udai Khanna, Adv. Mr. Mohd Akhil, Adv. Mr. Padmesh Mishra, Adv. Ms. Shrdha Deshmukh, Adv. Mr. Tacho Eru, Adv. Mr. Vatsal Joshi, Adv. Ms. Aishwarya Bhati, A.S.G. Mr. Vatsal Joshi, Adv. Ms. Kanu Agrawal, Adv. Mr. Varun Chugh, Adv. Mr. Bhuvan Kapoor, Adv. Mr. Krishna Kant Dubey, Adv. Mr. Piyush Beriwal, Adv. Ms. Indira Bhakar, Adv. Mr. Harish Pandey, Adv. Mr. Rajesh Singh Chauhan, Adv. Mr. Shreekant Neelappa Terdal, AOR Mr. Anupam Raina, AOR Mr. R N Pareek, Adv. Mr. Ankur Parihar, Adv. Mr. Anando Mukherjee, AOR Mr. Shwetank Singh, Adv. Mr. Mahesh Agarwal, Adv. Mr. Ankur Saigal, Adv. Mr. Anshuman Srivastava, Adv. Mr. Shashwat Singh, Adv. Mr. E. C. Agrawala, AOR Mr. Pukhrambam Ramesh Kumar, AOR Mr. Karun Sharma, Adv. Ms. Anupama Ngangom, Adv. Ms. Rajkumari Divyasana, Adv. Mr. Sudarshan Singh Rawat, AOR Ms. Saakshi Singh Rawat, Adv. Mr. Lokesh Sinhal, Sr. A.A.G. Mr. Akshay Amritanshu, AOR Mr. Nikunj Gupta, Adv. Ms. Drishti Rawal, Adv. Ms. Drishti Saraf, Adv. Ms. Aakanksha, Adv. Ms. Ishika Gupta, Adv. Ms. Sarthak Arya, Adv. Mr. Nikhil Jain, AOR Ms. Divya Jain, Adv. Mr. Amit Gupta, AOR Ms. Muskan Nagpal, Adv. Mr. Kshitij Vaibhav, Adv. Ms. Swati Ghildiyal, AOR Ms. Deepanwita Priyanka, Adv. Ms. Neha Singh, Adv. Mr. Rishi Yadav, Adv. Mr. Arjun Garg, AOR Ms. Kriti Gupta, Adv. Ms. Sagun Srivastava, Adv. Mr. Saaransh Shukla, Adv. Ms. Garima Prasad, Sr Adv, A.A.G. Mr. Shaurya Sahay, AOR Mr. Aditya Kumar, Adv. Ms. Ruchil Raj, Adv. Mr. Karan Sharma, AOR Mr. Chetan Manchanda, Adv. Mr. Guntur Pramod Kumar, AOR Ms. Prerna Singh, Adv. Mr. Dhruv Yadav, Adv. Mr. Suvendu Suvasis Dash, AOR Ms. Shailja Singh, Adv. Ms. Swati Vaibhav, Adv. Mr. Sanjai Kumar Pathak, AOR Mrs. Shashi Pathak, Adv. Mr. Arvind Kumar Tripathi, Adv. Mr. Nishe Rajen Shonker, AOR Mrs. Anu K Joy, Adv. Mr. Alim Anvar, Adv. Mr. Santhosh K, Adv. Mrs. Devika A.l., Adv. Mr. Kunal Chatterji, AOR Ms. Maitrayee Banerjee, Adv. Mr. Rohit Bansal, Adv. Mr. Varij Nayan Mishra, Adv. Ms. Devina Sehgal, AOR Mr. Mohd Ashaab, Adv. Ms. Eliza Barr, Adv. Ms. Disha Singh, AOR Mr. Abhay Anil Anturkar, Adv. Mr. Dhruv Tank, Adv. Mr. Aniruddha Awalgaonkar, Adv. Ms. Surbhi Kapoor, AOR Mr. Sarthak Mehrotra, Adv. Mr. Bhagwant Deshpande, Adv. Ms. Subhi Pastor, Adv. Mr. Ahanthem Henry, Adv. Mr. Ahanthem Rohen Singh, Adv. Mr. Mohan Singh, Adv. Mr. Aniket Rajput, Adv. Ms. Khoisnam Nirmala Devi, Adv. Mr. Yeshu Mehta, Adv. Mr. Kumar Mihir, AOR Mr. Avdhesh Kumar Singh, A.A.G. Ms. Prerna Dhall, Adv. Mr. Shivam Ganeshia, Adv. Mr. Ambuj Swaroop, Adv. Mr. Kapil Katare, Adv. Ms. Rajnandani Kumari, Adv. Mr. Prashant Singh, AOR Mr. Shiv Mangal Sharma, A.A.G. Mr. Amogh Bansal, Adv. Ms. Nidhi Jaswal, AOR Ms. Rashmi Nandakumar, AOR Ms. Yashmita Pandey, Adv. Mr. Rajiv Kumar Choudhry, AOR Mr. Prashant Alai, Adv. Mr. Kunal Mimani, AOR Mr. R.basant, Sr. Adv. Mr. T. G. Narayanan Nair, AOR Ms. Samyuktha H Nair, Adv. Mr. Manish Kumar, AOR Mr. Divyansh Mishra, Adv. Mr. Parth Awasthi, Adv. Mr. Pashupathi Nath Razdan, AOR Mr. Apoorv Kurup, Sr. Adv. Ms. Nidhi Mittal, AOR Ms. Jaya Choudhary, Adv. Mr. Amit Sharma, AOR Mr. Dipesh Sinha, Adv. Ms. Pallavi Barua, Adv. Ms. Aparna Singh, Adv. Mr. Sameer Abhyankar, AOR Mr. Rahul Kumar, Adv. Mr. Aakash Thakur, Adv. Ms. Yachna Sharma, Adv. Mr. Vishal Prasad, AOR Ms. Asmita Singh, AOR Ms. Asmita Singh, Adv. Ms. Gunita Tandon, Adv. Mr. Shishir Kumar Saxena, Adv. Mr. R.n. Pareek, Adv. Mr. Ankur Parihar, Adv. Mr. Praveen Swarup, AOR Mr. Avijit Mani Tripathi, AOR Mr. T.K. Nayak, Adv. Ms. Marbiang Khongwir, Adv. Mr. Shaurya Sahay, Adv. Ms. Pallavi Langar, AOR Mr. Nirnimesh Dube, AOR Mr. Kaushik Choudhury, AOR Mr. Debojit Borkakati, AOR Mr. R. Ayyam Perumal, AOR Mr. Sivabalan K., Adv. Mr. Yashvardhan, Adv. Mr. Apoorv Shukla, AOR Ms. Prabhleen A. Shukla, Adv. Mr. Aman Panwar, Adv. Mr. Abhinav Kumar, Adv. Mr. Akash Panwar, Adv. Mr. Mudit Gupta, AOR Mr. Somesh Chandra Jha, AOR M/S. Arputham Aruna And Co, AOR Ms. K. Enatoli Sema, AOR Mr. Amit Kumar Singh, Adv. Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv. Mr. Sarthak Raizada Ga, Adv. Mr. Sarad Kumar Singhania, AOR Mr. Ashish Batra, AOR Mr. Ankur Prakash, AOR Mr. Anjuman Tripathy, AOR Mr. Ardhendu Pratap Swain, Adv. Ms. Rooh-e-hina Dua, AOR Mr. Shrirang B. Varma, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Shuvodeep Roy, AOR Mr. Deepayan Dutta, Adv. Mr. Saurabh Tripathi, Adv. Ms. Enakshi Mukhopadhyay Siddhanta, AOR Mr. Ravi Kumar S., Adv. Mr. R. Murugaiyan, Adv. Mr. Shashwat Jaiswal, Adv. Mr. Sanchit Garga, Adv. Mr. Rahul Gupta, AOR Mr. Varinder Kumar Sharma, AOR Ms. Manisha Ambwani, AOR 8 Mr. Sunny Choudhary, AOR Mr. Maibam Nabaghanashyam Singh, AOR Ms. Astha Sharma, AOR Mr. Abhishek Singh, AOR Mr. Sabarish Subramanian, AOR Mr. Malak Manish Bhatt, AOR Mr. Arvind Kumar Sharma, AOR Mr. Aditya Jain, AOR Mr. Aravindh S., AOR Mr. Somanadri Goud Katam, AOR Mr. Sirajuddin, Adv. Mr. Abhimanyu Tewari, AOR Mr. P. I. Jose, AOR Mr. Pradeep Misra, AOR Mr. Pai Amit, AOR Ms. Vishakha, AOR Mr. V. N. Raghupathy, AOR Mr. Ramesh Babu M. R., AOR Mr. Ajay Pal, AOR Mr. Mahfooz Ahsan Nazki, AOR Mr. Prashant Shrikant Kenjale, AOR
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