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In a significant ruling, the Hon'ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation and Anr., 2025 INSC 909, reiterated that police authorities cannot serve notices to accused persons through WhatsApp, Email, or other electronic means under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) or Section 41A of the Code of Criminal Procedure, 1973 (CrPC).
The Court held that service of a notice under Section 35 of the BNSS needs to be carried out in a manner that protects this substantive right of the individual, particularly because non-compliance with such a notice may result in arrest. The Legislature, in its wisdom, has specifically excluded notices under Section 35 of the BNSS from the modes of electronic service permitted under Section 530 of the BNSS. The Court observed that restrictions on electronic communication for such notices are intended to protect the fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution.
Rejecting the State's contention, the Court clarified that Sections 63, 64, and 71 of the BNSS allow for the service of court-issued summons through electronic means only when safeguards such as the inclusion of the court's seal are in place. These provisions, however, do not apply to notices under Section 35 of the BNSS, which are issued by police authorities and not by the courts. A summons issued by a court constitutes a judicial act, whereas a notice issued by an investigating agency is an executive act. Therefore, the procedure for judicial acts cannot be applied to executive actions.
Accordingly, if the police serve a notice under Section 35(3) of the BNSS or Section 41A of the CrPC through WhatsApp or Email, and subsequently take any coercive action based on alleged non-compliance, both the notice and such action can be challenged as being legally unsustainable and violative of due process.
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