IMPORTANT POINT
Police notice – Service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to mode of service recognised and prescribed under Cr.P.C., 1973/BNSS, 2023.

ORDER (ORAL)

S.R. Krishna Kumar, J.—In this petition, petitioner seeks for the following reliefs:—

“Wherefore, the Petitioner most humbly prays that this Hon’ble Court be pleased to quash the notice dated 14.02.2025 issued by the 1st Respondent Police to him under Sec.35 (3) of Bharatiya Nagarik Suraksha Sanhita in respect of a case in Crime No.193/2024, registered for offence punishable under Sections 66(C), 66(D) of the Information Technology Act, 2000, pending on the file of 39th Additional CMM (CJM), Bengaluru City, in the interest of justice.”

2. A perusal of the material on record will indicate that respondent No.1 has issued the impugned notice under Section 35(3) BNSS / 41(A) of Cr.P.C through Whats App, as is clear from the said notice dated 14.02.2025.

3. Recently in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and Anr., - Misc. Application No.2034/2022 in MA 1849/2021 in Slp (Crl) No.5191/2021, the Hon’ble Apex Court has categorically held that issuance and service of notice under Section 35(3) BNSS / 41(A) of Cr.P.C through Whats App is impermissible in law.

4. In the said judgment, it is held as under:—

“We have heard the learned Amicus Curiae, Sh. Siddharth Luthra, and the learned counsel appearing for the respective parties.

The learned Amicus has filed the compliance report dtd. 20.01.2025 before this Court after a detailed analysis of the Affidavits/Reports filed by the States, Union Territories (for short “UTs”) and the High Courts, filed in pursuance of the directions passed by this Court vide earlier orders dtd. 11.07.2022, 03.02.2023, 21.03.2023, 02.05.2023, 13.02.2024, 06.08.2024 and 15.10.2024.

Certain additional directions were also issued by this Court vide order dtd. 15.10.2024 to all the States, UTs and the High Courts to make use of the Model Affidavit filed by the High Court of Meghalaya to ensure compliance of earlier directions in Para. F of the order dtd. 06.08.2024, so that an ‘Institutional Monitoring Mechanism’ can be set in place to ensure full and complete compliance of not only the earlier directions passed, but also of those directions that may be passed by this Court in the future as well.

The learned Amicus submitted that in pursuance of this Court’s order dtd.11.12.2024, all the concerned parties have reported either full or part compliance of the directions issued by this court, except for the State of Mizoram (which has filed its Compliance Affidavit way beyond the deadline given by this Court) and the UT of Lakshadweep (which has merely refiled its earlier Compliance Affidavit dtd. 21.05.2023).

The learned Amicus has flagged off three broad issues for our consideration. They are as follows:—

(i) Release of Undertrial Prisoners (for short “UTPs”) on personal bond, based on verification of AADHAAR Card.

(ii) Service of Notice under Section 41-A of the Code of Criminal Procedure,1973 (for short “CrPC, 1973”) and Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS, 2023”) is to be made in person, as contemplated under the statutes, and not through WhatsApp or other electronic modes.

(iii) Whether sufficient steps have been taken by the High Courts to set in place an “Institutional Monitoring Mechanism” in pursuance of the order dtd.06.08.2024 passed by this court?

Submissions under Issue (i)

Under Issue (i), the learned Amicus submitted that in Para. 7 of its additional Compliance Affidavit dtd. 14.10.2024, the NALSA has accepted and recorded the suggestion of the Amicus regarding release of UTPs on personal bonds after verification of their AADHAAR Card details and depositing the same in the concerned Court, in cases where no application under Section 440 of CrPC, 1973 or Section 484 of BNSS, 2023 has been preferred by the UTP, despite being informed about their right to move such an application.

The learned Amicus also submitted that he seeks time to consult and deliberate with the learned counsel for the NALSA abou