Upholding procedural compliance, Supreme Court reaffirms electronic service of notices under Section 41A CrPC/Section 35 BNSS as invalid Supreme Court upholds due process, bars e-notices under Section 41A CrPC, and strengthens safeguards against arbitrary arrests

03, Feb 2025 | CJP Team

In a plea regarding the case of Satender Kumar Antil vs CBI, the Supreme Court noted that notice cannot be served to an accused person via electronic modes such as WhatsApp, email, SMS, or any other means. This order comes in the light of concerns raised by the amicus curiae in the case, senior advocate Siddharth Luthra, regarding instances where notices have been sent to accused persons under Section 41A of the CrPC via WhatsApp, but the accused did not appear before the police.

The amicus also brought to attention the Standing Order passed by the Office of Director General of Police Haryana published on January 26, 2024, which authorises the Police to serve notice to an accused in person or via WhatsApp, email, SMS or any other electronic mode. The order of the Haryana Police is in direct contravention of the Supreme Court judgement in the case of Satender Kumar Antil vs CBI.

Section 41A of the CrPC was introduced to prevent unnecessary arrests in cases where the offence is punishable with imprisonment up to 7 years. As per this section, instead of arresting the accused immediately, the police must first issue a notice of appearance in a prescribed mode. Section 35 of the BNSS is the corresponding section for Section 41A of the CrPC.

Background

To gain a comprehensive understanding of the Supreme Court’s stance on the procedure regarding the service of notice under Section 41A CrPC, it is essential to examine the circumstances that necessitated such a judicial interpretation. 

In 2014, the Supreme Court laid down a landmark judgement in the case of Arnesh Kumar vs State of Bihar, [(2014) 8 SCC 273]. The Court deliberated upon the issue of unwarranted arrests and laid down guidelines for arrests to be made under Section 41, regarding all the offences punishable with imprisonment up to a period of 7 years. The guidelines were laid down for preventing arbitrary arrests and to protect individual liberties protected under Article 21 of the Indian Constitution. 

While emphasizing the importance of following the due procedure laid down in the CrPC, the Court noted that “Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.”

The primary objective of the Court was to protect the rights of the accused persons and to prevent them from being arbitrarily arrested. The landmark case laid down the ground for rights of arrested persons.

In 2018, in the case of Amandeep Singh Johar vs State of NCT of Delhi, [2018 SCC OnLine Del 13448], the Delhi High Court laid down the procedure to be strictly followed by the Police while issuing notice under Section 41A CrPC. This judgement came as a result of a writ petition under Article 226 and 227 of the Constitution of India, filed by an aggrieved person who had been summoned multiple times by the Police without issuing a notice under Section 41A of the CrPC. The writ petition highlighted how the Delhi Police had been functioning without strictly adhering to the procedure laid down under the CrPC regarding the issuance of notice to a person.

Further, in the case of Rakesh Kumar v Vijayanata Arya, [2021 SCC OnLine Del 5629], the Delhi High Court categorically mentioned that service of notice via WhatsApp, email, or any other electronic mode of communication would not be considered as valid as the same has not been provided in the provisions laid down in the CrPC. The petitioner in the case was taken into custody after notice was served upon him via Whatsapp and Email. The Court not only laid down the guidelines to be followed with regards to service of notice, but also provided for consequences for non-abidance of the same.

The Court held the arresting officer liable for contempt of court and noted that “Admittedly, the so-called ‘intimation’ through WhatsApp was not in the aforesaid format. Therefore, the intimation cannot be treated as a notice under Section 41A of the Cr. P.C. or of it having been served, as per the procedure laid down. Certainly, the IO (R-3) is in breach of the prescribed procedure as well as the Supreme Court’s direction in Arnesh Kumar. Personal liberty is a natural right of every human being. In India, it is guaranteed by the Constitution. The liberty of an individual cannot be trifled with. It can be curtailed by the State only through the procedure prescribed by law. The police officer has acted in clear breach of the constitutional guarantee and the specific orders of the Supreme Court.”

Satendar Kumar Antil vs CBI

In the case of Satender Kumar Antil vs CBI, [(2022) 10 SCC 51], the Court noted that there was an absence of specific guidelines with respect to the mandatory compliance of Section 41-A of the Code. The Court took a note of the endeavour made by the Delhi Court in the case of Rakesh Kumar v Vijayanata Arya where not only the need for guidelines but also the effect of non-compliance towards taking action against the officers concerned was discussed. The Court also took a note of the Standing Order 109 of 2020 passed by the Delhi Police which provided for a set of guidelines in the form of procedure for issuance of notices or orders by the police officers.

The court ordered all State Governments and Union Territories to facilitate Standing Orders in accordance with procedural requirements under Section 41A of the CrPC, noting the Delhi Police’s Standing Order 109 of 2020.

Further, the bench noted that “We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41-A. We express our hope that the investigating agencies would keep in mind the law laid down in Arnesh Kumar, the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance.”

In this case the Supreme Court upheld the judgement of the Delhi High Court in the case of Rakesh Kumar v Vijayanata Arya and recognized the importance of following due procedure laid down under the CrPC while serving notice to an accused. Furthermore, the Court directed state governments and union territories to issue standing orders regarding the procedural requirements under Section 41A of the CrPC referring to the Standing Order 109 of 2020 of the Delhi Police.

Recent developments

While hearing the recent plea in the case of Satendar Kumar Antil vs CBI, the amicus mentioned that “the police machinery must not circumvent the mandate of Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 by serving notices through WhatsApp or other electronic modes, instead of following the normal mode of service.”

He further mentioned that while the new criminal code, BNSS, permitted the use of electronic means for conducting trials or enquiries, the service of e–notice under Section 35 was not permitted.

In accordance with Section 41-A of the CrPC, 1973/Section 35 of the BNSS, 2023, the Court ordered all States and UTs to issue a Standing Order to their respective police machinery directing them to exclusively serve notices via the procedure specified by the CrPC, 1973/BNSS, 2023.

The bench of Justice MM Sundresh and Justice Rajesh Bindal noted 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 Court further stated that the Delhi High Court’s guidelines in the cases of Rakesh Kumar v. Vijayanta Arya and Amandeep Singh Johar v. State (NCT Delhi), both of which were upheld by the Supreme Court in Satender Kumar Antil v. CBI, must be strictly followed by all States/UTs when issuing Standing Orders to their respective Police machinery pertaining to Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023.

Conclusion

Protecting individual freedoms is crucial, as demonstrated by the Supreme Court’s reaffirmation of procedural compliance in serving notices under Sections 41A of the CrPC and 35 of the BNSS, 2023. Due process and constitutional safeguards against arbitrary arrests have been strengthened by the Court’s clear rejection of electronic notice service. This decision is consistent with important rulings that highlight the presumption of innocence and the need for judicial scrutiny, such as Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. CBI. The rights of the accused are safeguarded and the rule of law is upheld in India’s criminal justice system by ensuring that the prescribed procedures are strictly followed.

Image Courtesy: Live Law

(The legal research team of CJP consists of lawyers and interns; this judgement primer has been worked on by Yukta Adha)

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Erratic arrests by police and the Arnesh Kumar Judgement

Arrests: a prudent exception in cases with lesser sentence

Delhi HC sends police officer to prison for a day for violating Arnesh Kumar guidelines