Summary
The State of Haryana's application to modify the order of 21.01.2025, which forbade service of notices under Section 41-A CrPC/Section 35 BNSS through WhatsApp or other electronic means, was dismissed. A Section 35 notice bears on personal liberty under Article 21 since non-compliance can lead to arrest; the BNSS permits electronic communication only for specified procedures (Sections 530, 63, 64, 71, 94, 193), and its conscious omission for Section 35 notices reflects legislative intent that cannot be supplied by the Court.
Issues
- Whether a notice under Section 35 of the BNSS, 2023 (Section 41-A CrPC) may be served through WhatsApp or other electronic communication.
- Whether the provisions permitting electronic service of court summons (Sections 63, 64 and 71 BNSS) or electronic proceedings (Section 530 BNSS) extend to notices issued by the investigating agency.
Provisions considered
- Section 35, Bharatiya Nagarik Suraksha Sanhita, 2023Sub-section (3) mandates a written notice to appear where arrest is not required; (4) and (5) oblige compliance and bar arrest while the person complies; (6) permits arrest on non-compliance after the officer forms an opinion that arrest is necessary. The provision has a substantive element safeguarding liberty, so it cannot be treated as merely procedural and service must protect that right. (¶¶ 19, 20, 21, 22, 23, 24, 25, 26)
- Section 530, Bharatiya Nagarik Suraksha Sanhita, 2023Permits trials, inquiries and proceedings, including issuance and service of summons, to be held in electronic mode at the court's discretion; the Legislature thereby demarcated the permissible use of electronic communication and specifically excluded service of Section 35 notices. (¶¶ 16, 17, 27, 28)
- Section 2(i), (k), (l), (m), Bharatiya Nagarik Suraksha Sanhita, 2023Definitions of electronic communication, inquiry, investigation and judicial proceeding; investigation by the agency is distinct from inquiry or judicial proceedings by the court, so the procedure of one cannot be read into the other. (¶¶ 15, 32)
- Sections 63 and 64, Bharatiya Nagarik Suraksha Sanhita, 2023Summons may be in writing with the court's seal or in electronic form bearing the image of the seal or digital signature; under the proviso to Section 64(2) summons bearing the image of the court's seal may also be served electronically. The argument that Section 64(2) covers only system-generated summons was rejected: every summons must bear the seal or its image when served. (¶¶ 33, 34, 35, 36)
- Section 71, Bharatiya Nagarik Suraksha Sanhita, 2023Allows a court issuing summons to a witness to direct service by electronic communication; such a summons has no immediate bearing on liberty, unlike a Section 35 notice, so the two cannot be equated. (¶¶ 37, 38)
- Sections 94(1) and 193(3), Bharatiya Nagarik Suraksha Sanhita, 2023The only provisions permitting electronic communication by the investigating agency: electronic orders to produce documents and electronic forwarding of the police report or progress of investigation; neither bears on individual liberty. (¶¶ 40, 41, 42)
- Article 21, Constitution of IndiaProtection of liberty is a crucial aspect of the right to life; the Section 35(6) procedure secures this right and the restrictions on electronic communication in the BNSS safeguard it during investigation. (¶¶ 25, 29)
Held
- A notice under Section 35 of the BNSS, 2023 contains a substantive safeguard of personal liberty, since failure to comply may lead to arrest under Section 35(6) after the investigating agency exercises its discretion; interpreting the provision as merely procedural would amount to rewriting it, and service of the notice must protect this substantive right under Article 21. (¶¶ 23, 24, 25, 26)
- The BNSS permits electronic communication only for the procedures it specifies, namely Section 530 (trials, inquiries and proceedings), Sections 63, 64 and 71 (court summons) and Sections 94 and 193 (investigating agency), none of which bears on liberty. The restriction to those procedures precludes electronic communication for any other procedure, and the conscious omission of Section 35 notices manifests legislative intent; introducing such a mode into Section 35 would violate it. (¶¶ 27, 28, 30, 41, 42, 43)
- Investigation by the investigating agency is distinct from inquiry or judicial proceedings by a court, and a court's summons is a judicial act whereas a notice by the investigating agency is an executive act; the procedure prescribed for one cannot be read into the other. A Section 71 witness summons has no immediate bearing on liberty and cannot be equated with a Section 35 notice. (¶¶ 32, 38, 39)
- Irrespective of whether a summons is issued under Section 63(i) or 63(ii), it must bear the seal of the court or its image when served; the contention that Section 64(2) relates only to system-generated e-summons fails. (¶ 36)
Result
IA No. 63691 of 2025 dismissed; order dated 21.01.2025 in MA No. 2034/2022 in MA No. 1849/2021, directing that Section 41-A CrPC/Section 35 BNSS notices be served only by the modes prescribed in the CrPC/BNSS and not through WhatsApp or other electronic communication, confirmed.