Police cannot use WhatsApp as substitute to serve notice to accused, says Supreme Court

New Delhi: The Supreme Court has made it “amply clear” that WhatsApp or other electronic modes cannot be used as an alternative or substitute mode by police to serve notice to the accused under Section 41A of Code of Criminal Procedure (CrPC) or Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Section 41A, CrPc or Section 35, BNSS provides for the issuance of notice to accused, whose immediate arrest may not be required, to appear before the police or at such other place as may be specified.

A bench comprising Justice MM Sundresh and Justice Rajesh Bindal passed the directions in the Satender Kumar Antil v. CBI case, in which it has previously passed landmark directions to prevent unnecessary arrests of accused or suspects. The court has been posting this matter from time to time to monitor the implementation of its orders.

The bench ordered all the states and Union Territories to issue a Standing Order to their respective police departments asking them to issue such notices only through the prescribed mode of service under the CrPC or BNSS.

“It is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to the mode of service recognised and prescribed under the CrPC, 1973/BNSS, 2023,” it ordered.

The apex court was recently apprised that the Haryana government has permitted police to serve Section 41A. CrPC or Section 35, BNSS notices through WhatsApp, e-mail, SMS or any other electronic mode.

On January 21, Senior Advocate Siddharth Luthra, the amicus curiae in the case, had flagged that the police should not be allowed to circumvent the mandate of Section 41A, CrPC or Section 35, BNSS in this manner, by serving notices through WhatsApp or other electronic modes instead of following the normal mode of service.

He also pointed out that though the new criminal code (BNSS) permits the use of electronic means to conduct trials/enquiries, it does not permit service of e-notice under Section 35 BNSS.

The court accepted the submission and issued an order directing the police to strictly comply with the directions issued by it.

The bench also directed all the High Courts to hold meetings of their respective committees to ensure the implementation of the apex court’s decisions on a monthly basis, in order to ensure compliance of both the past and future directions issued by it at all levels.

It also asked High Courts to ensure that monthly compliance reports are being submitted by the concerned authorities. The bench will hear the matter next on

March 18.