WhatsApp Notices No Longer Valid: Supreme Court Enforces Strict Compliance Under CrPC & BNSS

 

WhatsApp Notices No Longer Valid: Supreme Court Enforces Strict Compliance Under CrPC & BNSS

By Abhishek Jat, Advocate

In a significant ruling, the Hon’ble Supreme Court of India has categorically held that service of notices under Section 41A of the Code of Criminal Procedure, 1973 (CrPC) and Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) must strictly adhere to the statutory requirements. The Apex Court has clarified that digital means such as WhatsApp, e-mail, and SMS do not constitute a valid mode of service for these statutory notices. This judgment underscores the importance of procedural compliance to uphold due process and prevent misuse of electronic communication in criminal proceedings.

Background of the Case

The ruling was delivered in response to issues raised in the case Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51 and subsequent compliance proceedings. The learned Amicus Curiae flagged instances where law enforcement agencies issued Section 41A CrPC notices via WhatsApp and other digital platforms, leading to non-compliance by the accused and lack of accountability by the police.

The Supreme Court noted that such practices are not in consonance with the procedural mandates laid down under Chapter VI of the CrPC and BNSS. It relied on the precedent set by the Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors. 2021 SCC Online Del 5629, which was subsequently upheld in Amandeep Singh Johar v. State (NCT Delhi), 2018 SCC Online Del 13448.

Judicial Reasoning and Legal Analysis

1.   Statutory Compliance is Non-Negotiable- The Hon’ble Court ruled that notices under Section 41A CrPC and Section 35 BNSS must be served personally, as contemplated under the statutes. Digital modes such as WhatsApp and SMS are not legally recognized as valid methods of service. The decision emphasizes that compliance with procedural safeguards is integral to protecting fundamental rights and ensuring transparency in the legal process.

2.     Lacunae in Digital Notice Service - The Court identified multiple concerns associated with serving notices via digital platforms:

o   Authentication Issues: Digital notices lack verified delivery receipts, raising concerns over manipulation or non-receipt by the accused.

o   Legal Admissibility: The CrPC and BNSS provide specific mandates for physical service of notices to ensure the accused’s awareness and opportunity to comply.

o   Misuse by Law Enforcement: There have been instances where investigating agencies claim to have served notices via WhatsApp, only for the accused to deny ever receiving them, resulting in legal complications.

3.     Precedents Upholding Procedural Mandates- The Court reaffirmed the principles laid down in Satender Kumar Antil v. CBI & Anr. and the Delhi High Court’s judgment in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors., which emphasized strict adherence to statutory modes of service. The ruling aligns with global standards, where courts have increasingly mandated physical service of legal notices to prevent disputes over digital delivery.

4.     Strict Directions to State Authorities- The Supreme Court directed all States and Union Territories (UTs) to issue standing orders mandating compliance with the prescribed mode of service under CrPC and BNSS. It explicitly stated that no police machinery shall resort to electronic means to serve these notices.

5.     Institutional Monitoring Mechanism- Recognizing the necessity of effective implementation, the Supreme Court ordered High Courts to establish institutional monitoring mechanisms to ensure full compliance with its directives. The compliance status must be reported regularly to the Court, ensuring accountability among law enforcement agencies.

Implications of the Ruling

• Ensuring Due Process: The judgment reinforces the fundamental principle of natural justice, ensuring that accused persons are duly notified in accordance with law.
• Curbing Procedural Irregularities: The ruling prevents misuse of informal digital communication methods that may lead to allegations of non-receipt or tampering.
• Accountability in Law Enforcement: The requirement for physical service enhances transparency and accountability among investigating officers.
• Strict Consequences for Non-Compliance: The Court warned that any deviation from its directives would attract strict consequences, including personal liability of concerned officials.

Compliance Directives Issued by the Supreme Court

To ensure uniform adherence to procedural norms, the Court mandated the following directives:

• State Governments and UTs:
• Issue standing orders prohibiting digital service of notices under Section 41A of CrPC and Section 35 of BNSS.
• Direct law enforcement agencies to strictly comply with prescribed statutory modes.
• Establish review mechanisms for procedural violations.
• High Courts:
• Establish monitoring committees to track implementation of Supreme Court directions.
• Submit compliance reports at regular intervals.
• Ensure training of judicial officers and law enforcement personnel on correct procedural service norms.
• Law Enforcement Agencies:
• Maintain detailed records of served notices.
• Ensure transparency in procedural compliance.
• Conduct regular audits to check unauthorized service via digital means.

Conclusion

The Supreme Court’s judgment is a landmark ruling that fortifies procedural integrity in criminal investigations. By eliminating informal digital notifications, the ruling ensures that legal procedures remain robust and beyond any scope of manipulation. Law enforcement agencies must now strictly adhere to the established statutory framework, thereby upholding the principles of justice and fairness. The judgment is a step forward in reinforcing the sanctity of procedural law and protecting the rights of individuals accused in criminal matters.

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Reference:

• Supreme Court Judgment in Satender Kumar Antil v. CBI & Anr. (2022) 10 SCC 51
• Delhi High Court Judgment in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors. 2021 SCC Online Del 5629