Introduction
Electronic devices, mass media/ social media applications are now universally used for communications, collaboration and everyday work.
The judiciary, too, has embraced such technological advances. E-filings and virtual hearings have become a regular part of legal practice in the country, and are not exceptions any longer.
WhatsApp and other such applications are of growing relevance even in the judicial process. It is not uncommon for litigants to use WhatsApp to share documents with their advocates. WhatsApp is being used increasingly to serve court pleadings and legal notices.
While it seems that such means of mass/ instantaneous communications are becoming more deeply entrenched even in the judicial process, a recent order dated January 21, 2025, in Satender Kumar Antil v. CBI [1] (“SK Antil”) has seemingly reigned this in.
By this order, the Hon’ble Supreme Court has clarified the extent to which WhatsApp/ Electronic modes can be used, in the context of police issuing notice under Section 41A CrPC/ Section 35 BNSS.
We elaborate on this below.
Section 41A Notice and permissible modes of service
A notice under Section 41A CrPC, 1973 (equivalent to Section 35 BNSS, 2023), allows a police officer to direct appearance of a person ‘whose arrest is not required’, but who may have relevant information pertaining to a cognizable offence and/ or against whom a reasonable complaint has been made.
But how is this notice to be served? The provision itself is not instructive. However, this has been decided by the Hon’ble Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors. [2] (“Rakesh Kumar”),wherein it was inter alia held that WhatsApp is not a permissible mode to issue notice under Section 41A CrPC. The court noted that such a notice ought to be issued in the manner provided under Chapter VI of CrPC (titled Process to Compel Appearance) and that where the provision contemplates service personally, use of electronic means (email/WhatsApp) would not be permissible.
This judgement in Rakesh Kumar was affirmed by the Hon’ble Supreme Court in a reported judgement dated July 11, 2022[3], in the same mater as present viz. SK Antil.
Recent Directions by the Hon’ble Supreme Court
By its order dated January 21, 2025, the Apex Court clarified that permissible modes of service of a Section 41A CrPC/ Section 35 BNSS notice under the CrPC do not permit service by WhatsApp/ Electronic modes. It was held that “It is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to the mode of service recognised and prescribed under the CrPC, 1973/BNSS, 2023.”
The Hon’ble Supreme Court further held that issuance of such a notice must be strictly in terms of the judgement in Rakesh Kumar,which, in turn, had held that service is to be as prescribed in Chapter VI CrPC (now BNSS).
The court reaffirmed its previous judgement dated July 11, 2022, in SK Antil[4], which had, in turn upheld the Delhi High Court judgement in Rakesh Kumar,wherein it was held that service of a Section 41A CrPC notice is not permissible by WhatsApp.
Thus, it has been categorically clarified that a notice under Section 41A CrPC/ Section 35 BNSS cannot be issued by WhatsApp and other electronic modes such as email, etc.
Analysis
Service means personal service?
The reason for rejecting WhatsApp/ Electronic modes as means of service is two-fold:
- The provision does not provide for it
- It is not a prescribed mode of service. The judgement in Rakesh Kumar has held that a notice under Section 41A CrPC is to be served as provided in Chapter VI CrPC.
Chapter VI of the CrPC sets out the manner in which summons are to be issued.
- Section 62 provides for service of summons personally, if practicable
- Section 63 provides for service of summons on body corporates by notice through registered post
- Section 64 provides for service of notice through an adult male member residing with a person, who otherwise cannot be found
- Section 65 provides that when summons under Section 63/ 64 cannot be effected, the notice can be affixed to a conspicuous part where the person normally resides.
The corresponding provisions in Chapter VI of the BNSS do not provide for any service through ‘electronic’ mode. Thus, service, effectively means personal service.
Impact on the present judgement on interpretation of Section 530 BNSS
While no such provision existed in the CrPC, Section 530 of the BNSS specifically provides for all trials, inquiries and proceedings conducted under the BNSS “including issuance, service and execution of summons and warrant” “by use of electronic communication”.
In the present matter, the Hon’ble Supreme Court has not specifically opined on Section 530 BNSS. Thus, it will be interesting to see future decisions on this, especially in view of the present order.
Looking ahead
The order dated January 21, 2025, passed by the Hon’ble Supreme Court enforces the letter of the law. It is well settled that criminal statutes are to be interpreted strictly. It is also settled that when a statute prescribes a manner of doing something, it must be done exactly so.
Thus, it was not for the court to create elbow room where none existed or to legislate and provide an expansive interpretation, which is otherwise not borne by the provisions of the statute. While inconvenient, the permissible modes under the statute place the burden of proving service on the police. WhatsApp may be more convenient and efficient, but the factum of service, i.e. the relevant person becoming personally aware of the notice will be more difficult to verify. In certain cases, the factum of service may be manipulated ˗ thus undermining the rights conferred by the statute. While not stated in so many words, the court has erred on the side of caution. We believe that it is for this reason that the legislature has not made any changes to Section 35 BNSS (equivalent to Section 41A CrPC)- keeping in mind concerns relate to personal liberty.
If this position needs to be altered, it is the legislature that needs to make the appropriate amendments to the law. But for now, the Apex Court has blocked the issuance of Section 41A CrPC /Section 35 BNSS notices through WhatsApp.
For further information, please contact:
Kapil Arora, Partner, Cyril Amarchand Mangaldas
kapil.arora@cyrilshroff.com
[1] Miscellaneous Application No. 2034/2022 in MA 1849/2021 in SLP(Crl) No. 5191/202
[2] 2021 SCC Online Del 5629
[3] (2022) 10 SCC 51
[4] Supra N5
