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by sayum
07 July 2026 3:12 PM
"Where Liberty Is at Stake, Law Demands Personal Touch - Introducing Electronic Mode Would Violate Legislative Intent and Compromise Personal Liberty” — Supreme Court, comprising Justice M.M. Sundresh and Justice Nongmeikapam Kotiswar Singh, delivered a significant ruling in Satender Kumar Antil v. CBI & Anr., reaffirming its earlier directive that notices under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) must be served personally, and not through electronic means such as WhatsApp or email.
The State of Haryana had filed an application seeking modification of the Court’s order dated 21 January 2025, which had directed all States and Union Territories to adopt personal service of Section 35 notices through formal mechanisms prescribed under the BNSS or the erstwhile CrPC.
Rejecting the plea, the Supreme Court ruled: “Service of a notice under Section 35 of the BNSS, 2023 needs to be carried out in a manner that protects this substantive right, as non-compliance with the notice can have a drastic effect on the liberty of an individual.” [¶26]
The Attempt to Equate Investigative Notices with Summons “Falls to the Ground”
Arguing for the State of Haryana, counsel contended that Section 64 and Section 71 of the BNSS permit electronic service of summons, and therefore, similar treatment should extend to notices under Section 35. The State claimed such service would reduce evasion and optimize State resources.
But the Court drew a clear demarcation: “A summons issued by a Court is a judicial act, whereas a notice issued by the Investigating Agency is an executive act. Hence, the procedure prescribed for one cannot be read into the procedure prescribed for the other.” [¶39]
Explaining the inherent difference between judicial and investigative processes under the BNSS, the Court stated:
“While the former is to investigate an offence, the latter is a search towards the truthful determination of an occurrence. Therefore, the procedure of one cannot be read into the other.” [¶32]
“Electronic Communication Is Not Contemplated for Investigative Notices” — Legislature’s Silence Is Deliberate
The Court referred to Section 530 of the BNSS, which permits electronic communication for specified procedures such as service of summons, recording of evidence, and appellate proceedings. But notably, it does not include investigative acts such as issuance of notices under Section 35.
“The Legislature, in its wisdom, has specifically excluded the service of a notice under Section 35... from the ambit of procedures permissible through electronic communication... Introducing a procedure into Section 35... would be violative of its intent.” [¶27, ¶43]
Addressing the broader scheme of the BNSS, the Court observed:
“The restrictions on the usage of electronic communication have been imposed in order to safeguard the right to life and personal liberty, guaranteed to an individual by the Constitution, from being impinged during the course of criminal investigation.” [¶29]
Section 35 Is Not Procedural, But Substantive — It Is About Protecting the Accused’s Liberty
The Court described Section 35 of BNSS — which governs arrests without warrant — as more than a procedural formality. Since non-compliance with a notice under Section 35(3) can eventually lead to arrest, the Court emphasized its constitutional ramifications:
“The protection of one’s liberty is a crucial aspect of the right to life guaranteed under Article 21... The procedure encapsulated in Section 35(6)... seeks to secure this fundamental right.” [¶25]
Thus, any deviation from the formal, documented, and personal service of such notices could risk a violation of the constitutional guarantee against arbitrary arrest.
“WhatsApp Is Not a Substitute for the Rule of Law” — Court Reiterates That Technological Convenience Cannot Override Liberty
While the BNSS embraces modern communication in many provisions — such as Sections 94 and 193, allowing police to send electronic reports and document requisitions — the Court stressed that none of these provisions touch upon personal liberty.
“The usage of electronic communication by the Investigating Agency has only been provided for effecting the procedure under Sections 94 and 193... None of these procedures have any bearing on the liberty of an individual.” [¶42]
The Court also noted that summons to witnesses under Section 71 are permitted electronically only because non-compliance carries no consequence affecting liberty — unlike notices under Section 35.
“A summons under Section 71... has no immediate bearing on the liberty of an individual... However, a notice under Section 35... could have an immediate bearing on the liberty in case of non-compliance.” [¶38]
Guidelines in Rakesh Kumar and Amandeep Singh Johar Still Binding
Rejecting the State’s argument that prior decisions under the CrPC have no bearing post-BNSS, the Court observed that the guidelines laid down in Rakesh Kumar v. Vijayanta Arya and Amandeep Singh Johar v. State (NCT of Delhi) — both upheld in Satender Kumar Antil v. CBI (2022) 10 SCC 51 — remain relevant, as the BNSS maintains the same safeguard-oriented architecture.
“The essence of Article 21 of the Constitution imbues the BNSS, 2023... The restrictions on the usage of electronic communication have been imposed in order to safeguard the right to life and personal liberty.” [¶29]
“Liberty Cannot Be Subject to Technological Expediency”
The Supreme Court ultimately dismissed the State of Haryana’s application (IA No. 63691/2025) and reaffirmed the requirement of personal service of Section 35 notices, stating:
“We are unable to convince ourselves that electronic communication is a valid mode of service of notice under Section 35 of the BNSS, 2023... IA No. 63691 of 2025 stands dismissed.” [¶44]
With this ruling, the Supreme Court has drawn a clear constitutional boundary between technological convenience and the protection of personal liberty, ensuring that service of investigative notices remains a serious, documented, and accountable process.
Date of Decision: 16 July 2025
