Criminal Procedure – Service of Notice – Electronic Communication – Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) – Section 35 (Notice for appearance before police officer) – Section 530 (Trials and proceedings in electronic mode) – Sections 63, 64, 71 (Summons by Court) – Legislative Intent – Right to Liberty (Article 21 of the Constitution of India, 1950).
(2025) 7 SCD 91 : 2025 INSC 909
ATENDER KUMAR ANTIL v. CENTRAL BUREAU OF INVESTIGATION AND ANR.
[IA No. 63691 of 2025 in MA No. 2034 of 2022 in MA No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021]
Key Points/Summary:
Prior Order Sought to be Modified: The State of Haryana filed IA No. 63691 of 2025 seeking modification of the Supreme Court’s order dated January 21, 2025. The prior order had directed all States and Union Territories to mandate their police machinery to issue notices under Section 41-A of the Code of Criminal Procedure, 1973 (CrPC, 1973) or Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023), exclusively through the modes of service prescribed under the respective codes. It explicitly stated that service through WhatsApp or other electronic communication cannot be considered a substitute for the prescribed modes. This order also mandated adherence to Delhi High Court guidelines (Rakesh Kumar v. Vijayanta Arya (DCP) & Ors. and Amandeep Singh Johar v. State (NCT Delhi)), which were previously upheld by the Supreme Court in Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51.
Applicant’s (State of Haryana) Contentions:
A notice under Section 35 of BNSS, 2023 is merely an information to join investigation, not an arrest, and electronic service helps prevent evasion and saves state resources.
Sections 64(2) (Proviso) and 71 of BNSS, 2023 permit electronic service of summons by the Court (with or without a Court’s seal, depending on the interpretation), suggesting no bar for Section 35 notices.
Section 530 of BNSS, 2023 demonstrates the legislature’s intent to use technology in streamlining criminal proceedings (including trials, inquiries, and other proceedings), making an exclusion for Section 35 notice service an exception to this overall scheme.
The previous guidelines from Delhi High Court were under CrPC, 1973, which lacked electronic service provisions, unlike BNSS, 2023, thus making those guidelines inapplicable to the new Sanhita.
Amicus Curiae’s Submissions:
Electronic service for Section 35 BNSS, 2023 is not contemplated by Chapter VI of BNSS, 2023 and is therefore invalid.
The Proviso to Section 64(2) of BNSS, 2023 permits electronic service of summons only when they bear the Court’s seal. Since a Section 35 notice is not issued by the Court but by the Investigating Agency, the regular mode of service must be followed.
Section 530 of BNSS, 2023 explicitly includes trials, inquiries, and proceedings in electronic mode, but consciously omits investigations, implying that electronic service for Section 35 notices is not permitted.
Non-compliance with a Section 35 notice can lead to arrest and deprivation of an individual’s liberty, thus necessitating personal service.
Court’s Reasoning and Decision:
The BNSS, 2023 defines and recognizes “electronic communication” (Section 2(i)). However, the extent of its permissible usage is clearly demarcated under Section 530 of BNSS, 2023.
Section 530 of BNSS, 2023 allows electronic mode for trials, inquiries, and proceedings, including issuance and service of summons/warrants, but does not explicitly include “investigations”.
Section 35 of BNSS, 2023 outlines conditions for arrest without warrant and is designed to safeguard an individual’s liberty by restricting arbitrary arrests. It mandates the issuance of a notice (Section 35(3)) when arrest is not necessary, and compliance with this notice protects the individual from arrest (Section 35(5)). Non-compliance does not lead to automatic arrest but provides discretion to the police officer.
The Court held that Section 35 carries a substantive element protecting individual liberty (Article 21 of the Constitution). Therefore, the service of such a notice must be carried out in a manner that protects this substantive right, as non-compliance can drastically affect liberty.
The legislative intent is gathered from a plain reading of the BNSS, 2023, which shows that the Legislature specifically excluded the service of a notice under Section 35 from the ambit of procedures permissible through electronic communication under Section 530. The restrictions on electronic communication are imposed to safeguard the right to life and personal liberty, particularly in circumstances that bear on an individual’s liberty.
The Court distinguished between summons issued by a Court (judicial act) and notices issued by the Investigating Agency (executive act). While Sections 63, 64, and 71 of BNSS, 2023 allow electronic service for Court summons (which often require a Court’s seal or digital signature), a summons under Section 71 (to a witness) does not have an immediate bearing on an individual’s liberty in case of non-compliance, unlike a Section 35 notice.
The BNSS, 2023 does permit electronic communication by the Investigating Agency in specific instances, such as issuing summons to produce documents (Section 94(1)) and forwarding police reports or informing victims/informants (Section 193(3)). However, none of these specific uses affect the liberty of an individual.
Therefore, the conscious omission of Section 35 notice from permissible electronic service modes is a clear manifestation of legislative intent, and introducing it would violate that intent.
Conclusion: The application (IA No. 63691 of 2025) seeking modification of the order dated January 21, 2025, was dismissed, and the original order was confirmed.
