Supreme Court Prohibits Electronic Service of Section 35 BNSS Notices, Upholding Physical Delivery to Protect Liberty

New Delhi – In a landmark judgment with profound implications for criminal procedure and the protection of individual liberties under the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Supreme Court has ruled that notices issued by police under Section 35 cannot be served via electronic means such as WhatsApp. The Court underscored the necessity of physical delivery, reinforcing the principle that procedural safeguards directly linked to personal liberty cannot be diluted for administrative efficiency.

The ruling, delivered on July 16, 2025, by a Division Bench of Justice MM Sundresh and Justice N Kotiswar Singh, resolves a critical ambiguity in the application of the new criminal code. The Bench dismissed a plea by the State of Haryana which sought to permit electronic service, thereby affirming a previous order mandating strict adherence to legally prescribed modes of service. The case, Satender Kumar Antil vs. Central Bureau of Investigation (CBI) , continues to be a pivotal reference for the interpretation and implementation of the new criminal laws.

Background of the Dispute: A Clash Between Efficiency and Liberty

The issue originated from a Supreme Court order dated January 21, 2025, which directed all States and Union Territories to issue standing orders mandating that notices under Section 41A of the erstwhile Code of Criminal Procedure (CrPC) or its corresponding Section 35 of the BNSS be served only through methods explicitly outlined in the law.

The State of Haryana filed an application seeking modification of this order, arguing for the inclusion of electronic modes of communication, including WhatsApp, for serving Section 35 notices. The state's counsel contended that such a measure would enhance efficiency, expedite the investigation process, and conserve state resources. The argument was premised on the broader digital push within the judiciary, citing Sections 64(2), 71, and 530 of the BNSS, which allow for electronic service of summons and electronic conduct of certain court proceedings.

However, the Supreme Court Bench was unpersuaded, drawing a sharp and deliberate distinction between judicial acts and executive acts within the criminal justice framework.

The Court's Reasoning: Statutory Intent and Constitutional Safeguards

The core of the Supreme Court's judgment rests on a purposive interpretation of the BNSS, prioritizing the legislative intent to protect fundamental rights over administrative convenience. The Bench articulated several key reasons for rejecting Haryana's plea.

1. The Gravity of a Section 35 Notice

The Court emphasized the serious consequences tied to a Section 35 notice. This provision requires a police officer to issue a notice to a person against whom a reasonable complaint has been made, credible information exists, or a reasonable suspicion is present, if the officer does not deem immediate arrest necessary. The crucial element, as highlighted by the court, is Section 35(6), which empowers the police to arrest an individual for failure to comply with the terms of the notice.

“The protection of one’s liberty is a crucial aspect of the right to life guaranteed to each and every individual, under Article 21 of the Constitution of India. The procedure encapsulated in Section 35(6) of the BNSS, 2023, seeks to secure this fundamental right.”

Given that non-compliance can lead directly to a deprivation of liberty, the Court concluded that the mode of service must be foolproof, verifiable, and strictly compliant with due process to prevent any miscarriage of justice.

2. Judicial vs. Executive Acts: A Clear Demarcation

The Bench meticulously distinguished between a summons issued by a court and a notice issued by an investigating agency. It held that while the BNSS permits electronic service for judicial summons under specific conditions (e.g., presence of the court's seal image), these provisions cannot be extrapolated to cover notices issued by the police, which are executive in nature.

“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 a judicial act cannot be read into the procedure prescribed for an executive act.”

This distinction is fundamental. A judicial summons is part of a court-supervised process with inherent safeguards, whereas a police notice is an instrument of the investigation phase, where the potential for misuse necessitates stricter procedural adherence.

3. The Principle of Expressio Unius Est Exclusio Alterius

The Court also invoked the doctrine of statutory interpretation that "the express mention of one thing implies the exclusion of another." It observed that the legislature had consciously included provisions for electronic communication in specific sections of the BNSS, such as Section 94 (summons to produce a document) and Section 193 (police report). The conspicuous absence of such a provision in Section 35, the Court reasoned, was a deliberate legislative choice.

“While interpreting a statute, the legislative intent is to be gathered from a plain and simple reading of the language employed in the provisions, in a purposive manner, thereby upholding the objective behind the enactment.”

This indicates that where the legislature intended for electronic means to suffice, it explicitly stated so. Its silence in Section 35 was therefore interpreted as an intention to restrict the mode of service to traditional, physical methods.

The Role of the Amicus Curiae

The Court's position was bolstered by the submissions of Senior Advocate Siddharth Luthra, who was appointed as amicus curiae . Mr. Luthra argued compellingly that the potential for arrest under Section 35(6) elevates the notice to a matter of constitutional importance. He stressed that service must be personal and verifiable to ensure the accused is unequivocally aware of their legal obligations. He also pointed out that Section 530 of the BNSS, which pertains to conducting trials and inquiries electronically, deliberately omits any reference to "investigation," further cementing the distinction between judicial proceedings and police work. The Bench found merit in these submissions and incorporated them into its final reasoning.

Broader Implications for the Justice System

This judgment serves as a crucial check on the unbridled digitalization of legal processes, especially where fundamental rights are at stake. While technology offers undeniable benefits in efficiency, this ruling is a stark reminder that its application must be tempered by the principles of due process and natural justice.

For legal practitioners, this decision provides clear guidance on the procedural validity of Section 35 notices and strengthens the grounds for challenging arrests made on the basis of improperly served notices. For law enforcement agencies, it establishes a bright-line rule: physical service is non-negotiable for Section 35 notices.

As India navigates the implementation of its new criminal laws, this judgment will stand as a foundational precedent, ensuring that the quest for a modern and efficient justice system does not come at the cost of the constitutional right to liberty.