Author: Shravani kale, ILS Law college Pune
Abstract
In today’s world, where rapid communication and easy digital access have become the norm, traditional legal processes often clash with advanced technological practices. This conflict is especially notable when it comes to issues of rights and personal liberty. As digital methods continue to transform various aspects of government and public interaction, the realm of criminal procedure demands strict adherence to established norms. The recent reaffirmation by the Supreme Court of India that police summons issued under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) cannot be served electronically highlights the essential importance of due process and the safeguarding of individual rights, particularly in an age of swift technological advancement.
To the point
The state of Haryana requested permission from the Supreme Court to serve summons electronically via email or WhatsApp, to ensure prompt completion of the legal criminal procedure. Hence, the state of Haryana made an application to modify the Supreme Court’s order dated January 21, 2025, in which the Court had directed all states and union territories should give their corresponding police departments standing orders. These orders mandated that notices under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, be served only through a procedure established by law. The division bench, consisting of Justices MM Sundresh and NK Singh, dismissed the application and upheld the original order. The Court concluded that it was not convinced that electronic communication qualified as a valid method of service for notices under Section 35 of the BNSS, 2023. The absence of such a provision by the Legislature was interpreted as a clear indication of its intent. The Court remarked that incorporating a procedure into Section 35 of the BNSS, 2023, which had not been explicitly provided by the Legislature, would contradict the legislative intent.
Legal Jargon
Section 35 of the BNSS represents a critical provision aimed at ensuring that individuals against whom there exists a reasonable complaint or suspicion of a cognizable offence are issued a “notice to appear” before law enforcement or investigative authorities. This notice provides the individual an opportunity to present themselves before the police or investigating body without immediate arrest. Importantly, this notice is not merely advisory; failure to comply with it can, in certain circumstances, lead to arrest.
The Supreme Court’s consistent position regarding the necessity for physical, personal service of such summons is rooted in a profound understanding of the legal implications involved. Unlike a generic communication, a police summons under Section 35 of the BNSS carries significant consequences, including the potential for arrest if the recipient fails to comply. Therefore, the method of service must be unequivocal, ensuring the following:
Undeniable Receipt Personal service, preferably accompanied by an acknowledgement, creates a concrete and legally verifiable record confirming that the individual has received the summons. While electronic methods may offer “read receipts,” they are often not fully reliable and may be susceptible to technical failures, recipient misidentification, or willful non-acknowledgement.
A physical document enables the recipient to grasp the content fully, seek appropriate legal counsel, and prepare their response without the potential distractions or ambiguities associated with digital communications.
The notification procedure must be comprehensive and clear-cut as failing to comply with a Section 35 BNSS summons can have a serious impact on a person’s personal freedom and result in arrest. The basic principle of Article 21 of the Constitution, which protects the right to life and individual liberty, could be compromised by manipulating any service gaps.
The Court has consistently maintained that the intentional exclusion of electronic service in Section 35 of the BNSS, contrasting with provisions that allow it, such as specific court summons or forwarding reports to magistrates, reflects clear legislative intent. Introducing an electronic service where the statute expressly omits it would amount to judicial overreach and an unjustified alteration of the law.
Proof
In advocating for the acceptance of electronic summons, the state cited the recent Bharatiya Nagarik Suraksha Sanhita, which authorises the use of electronic means in court proceedings about the issuance, service, and execution of summons and warrants. Nevertheless, the bench elucidated that a summons issued by a court constitutes a judicial act, while a notice issued by an investigative agency constitutes an executive act. Therefore, the procedures applicable to judicial acts cannot be directly transposed to executive acts.
The court underscored that liberty is a fundamental concern regarding police summons, as individuals may risk arrest for noncompliance. Therefore, notifications must be served personally to the accused, rather than through electronic communication. The court stated that the protection of individual liberty is an essential aspect of the right to life guaranteed to every citizen under Article 21 of the Constitution. Thus, any effort to classify this provision solely as procedural would represent a serious misinterpretation of its intent. The Court noted that the Legislature, in its wisdom, specifically excluded the service of a notice under Section 35 of the BNSS, 2023, from the scope of procedures permitted via electronic communication, as delineated under Section 530 of the BNSS, 2023. Moreover, it stated that in interpreting a statute, the legislative intent must be determined through a clear and purposive reading of the language employed within the provision, in a manner that upholds the objective of the enactment. A straightforward reading of the BNSS, 2023, makes it evident that the Legislature imposed explicit restrictions on the use of electronic communication, permitting it solely for certain specified procedures. Therefore, the application of electronic communication for any other procedure, not expressly permitted, is precluded.
The Court asserted that this interpretation is supported by the objectives sought to be achieved through the BNSS, 2023, which, as previously highlighted, is underpinned by the essence of Article 21 of the Constitution. This reflects the commendable objective of safeguarding individual liberty while ensuring effective investigation and adjudication of offences. The restrictions imposed on electronic communication were intended to protect the right to life and personal liberty guaranteed by the Constitution, particularly during criminal investigations and proceedings. The Court further opined that it is manifestly apparent that the Legislature intentionally specified the limited circumstances under which the use of electronic communication is permissible, namely, situations that do not adversely affect an individual’s liberty.
Regarding the permissibility of using electronic communication for the issuance of summons by the Court under the BNSS, 2023, the Court found it necessary to examine the nature of proceedings concerning a notice under Section 35 of the BNSS, 2023, in comparison to a summons issued under Sections 63, 64, and 71 of the BNSS, 2023. The Court noted that the purpose of an investigation conducted by an Investigating Agency is distinctly different from that of an inquiry or judicial proceedings before a Court. While an investigation seeks to uncover the commission of an offence, an inquiry or judicial proceeding is aimed at the truthful determination of the facts surrounding the occurrence. Therefore, one cannot use the same procedural framework that applies to 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 another officer authorised by the High Court, and must bear the seal of the Court.
The Legislature has introduced a new form of summons under Section 63(2) of the BNSS, 2023, which allows for the issuance of summons in encrypted form or through other modes of electronic communication. Such summons must feature the image of the Court’s seal or a digital signature. The Court has noted that Section 64 of the BNSS, 2023 addresses the protocol for serving summons, specifically highlighting Section 64(2), which mandates that, wherever feasible, summons must be served personally by delivering or presenting one of the duplicate copies. The proviso to Section 64(2) grants discretion to serve summons via electronic communication, contingent upon the summons bearing the image of the Court’s seal in a manner and form prescribed by the State Government through regulations.
After carefully examining Sections 63 and 64 of the BNSS, 2023, the Court rejected the applicant’s claim that Section 64(2) only applied to system-generated summonses, like those sent via the e-Summons App, and that the Court’s seal was therefore necessary only for authenticity. The Court explained that the summons must bear the Court’s actual seal or an image of the seal upon service, regardless of whether it was issued under Section 63(1) (physical form) or Section 63(2) (electronic form).
Moreover, the Court referred to Section 71 of the BNSS, 2023, which delineates the service of summons on witnesses. Specifically, sub-section (1) allows the Court issuing a summons to dictate that a copy of such summons be served through electronic communication. The Court rejected the applicant’s assertion that a notice under Section 35 of the BNSS, 2023, should be categorised similarly to a summons under Section 71, and therefore be allowed electronic service. The Court reasoned that such a comparison is untenable, as non-compliance with a summons under Section 71 does not have an immediate impact on an individual’s liberty, whereas non-compliance with a notice issued under Section 35 could substantially affect an individual’s liberty, as outlined in Section 35(6) of the BNSS, 2023. The Court articulated that a summons issued by a Court under Sections 63 or 71 constitutes a judicial act, in contrast to a notice issued by an Investigating Agency under Section 35, which constitutes an executive act. Consequently, the procedures applicable to judicial acts cannot be extended or applied to executive actions. The Court recognised that the BNSS, 2023, does not completely forbid the Investigating Agency from using electronic communication.
The Legislature has anticipated the incorporation of electronic communication during the investigation process and upon its conclusion, as explicitly provided in Sections 94(1) and 193(3) of the BNSS, 2023. The Investigating Agency may use electronic communication for certain purposes under these laws. While Section 193 deals with the use of electronic communication to notify the victim or informant of the investigation’s progress or to forward the final report to the magistrate upon completion of the investigation, Section 94 deals with the issuance of summonses in electronic form for the production of documents. These provisions do not influence the personal liberty of an individual; therefore, the Court remains unconvinced that electronic communication serves as a valid method for serving notice under Section 35 of the BNSS, 2023. The deliberate exclusion of such a provision by the Legislature indicates a clear legislative intent. It would be against this legislative intent to try to amend Section 35 of the BNSS, 2023, to include processes that aren’t specifically mentioned. Consequently, the application seeking modification of the order dated January 21, 2025, has been dismissed, and the Court’s order dated January 21, 2025, is hereby confirmed.
The judgment recognised that the BNSS allows for the use of electronic communication in certain circumstances—such as issuing summons for documents under Section 94 or delivering investigation reports under Section 193. However, the Court observed that none of these provisions pertained to personal liberty. Consequently, extending electronic methods to Section 35 would exceed the intended scope of the law. The deliberate exclusion of electronic service in Section 35 was viewed as a conscious legislative decision. By upholding the BNSS’s stance against electronic service, the Court concluded that any alternative interpretation would undermine the protective intent of the provision.
Case laws
Satender Kumar Antil v. CBI & Anr. (2022): In this case, the court reinforced that bail is the rule and jail is the exception. It mandated strict compliance with arrest procedures under Sections 41 and 41A of the CrPC, discouraging automatic arrests upon filing charge sheets. Courts were directed to expedite bail hearings and ensure that undertrials’ rights are protected.
Amandeep Singh Johar v. State (NCT of Delhi), 2018: The Delhi High Court in Mandeep Singh Johar v. State (NCT of Delhi), 2018, mandated that legal notices under Section 41A CrPC must be served personally or as per statutory procedure, not via electronic modes like WhatsApp or email. Proper service in the prescribed format is essential to uphold individual liberty. These principles were later affirmed by the Supreme Court, emphasising strict procedural compliance. Any arrest based on improper service of notice is invalid.
Conclusion
The Supreme Court’s ruling upholds due process and individual liberty by confirming that notices under Section 35 of the BNSS must be delivered in person. The ruling clarifies the legislature’s cautious approach to electronic communication in criminal proceedings and draws a clear boundary between permissible and impermissible use of technology in procedural law. Critics contend that the Supreme Court’s strategy would impede investigations and enable defendants to avoid prosecution. However, the Court balanced these concerns against the acute need to safeguard liberty and prevent misuse of executive power. Moreover, the judgment does not preclude legislative reform in the future, should Parliament wish to authorise electronic service under controlled, secure conditions, buttressed by appropriate safeguards.
FAQs
What did the Supreme Court decide regarding the service of notices under Section 35 of the BNSS?
The Court held that notices under Section 35 of the BNSS, 2023 must be served physically and not via electronic methods like WhatsApp or email
What are the consequences of improper service under Section 35 BNSS?
Improper service renders any resulting arrest or coercive action invalid and may violate constitutional guarantees of personal liberty
What distinction did the Court make between judicial summons and executive notices?
Judicial summons (Sections 63, 64, 71 BNSS) are issued by courts and can be served electronically with safeguards like digital seals. Executive notices (Section 35 BNSS) are issued by police/investigating agencies, directly affect liberty and must be served physically.
Which constitutional principle guided the Court’s ruling?
The Court relied on Article 21 of the Constitution, which guarantees the right to life and personal liberty. Any process that can potentially lead to arrest must have strict procedural safeguards.
