In one of the historic judgments, the Supreme Court of India covered one of the most important questions about the application of electronic communication in criminal investigations. This case (Satender Kumar Antil vs. Central Bureau of Investigation and Anr.) was because of an application that the state of Haryana made to change an earlier court order. The gist of the argument was whether notifications given by the police under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS, 2023) could be delivered electronically such as via WhatsApp, or they were to be delivered in person. The earlier direction, dated January 21, 2025, had required all the states and union territories to issue a standing orders to their police officials to serve in only modes prescribed under the CrPC, 1973 or BNSS, 2023, and not a substitute by means of the electronic communication. The ultimate ruling of the Supreme Court in this case would reverberate far and wide on the legal strategy to balance between modernization of legal proceedings and the right to freedom of an individual, which is one of the most fundamental rights of a person.
Arguments by the State of Haryana
The applicant, the State of Haryana in this case, contended that a notice under Section 35 of the BNSS, 2023, is merely a piece of paper with no impulse to arrest as it is an informational piece of paper, which necessitates a person to join an investigation. Counsel of the state argued that the electronic service would be needed so that people do not find ways to avoid being noticed and also save state funds. Pointing at Section 64 and Section 71, they emphasized that the BNSS, 2023, which deals with serving summons, allows serving summons with the help of electronic communication. The argument was that a Section 35 notice ought to be dealt with in the same manner as a Section 71 summons since they could be conducted electronically without carrying a physical seal. The state also cited section 530 under the BNSS, 2023 that permits trials, inquiries, and proceedings to be conducted by electronic communications implying that case of excluding notices there would be an exception to the general purpose of the legislation to utilize technology in criminal proceedings. They also contended that the former Delhi High Court guidelines, which had been affirmed by the Supreme Court, was made based on the CrPC, 1973 and they did not provide provisions of the electronic communication and hence shall not take effect to the BNSS, 2023.
The Amicus Curiae has contributed to the case with submissions.
The amicus curiae (friend of the court) had the opposite contention stating that electronic service of a notice under Section 35 of the BNSS, 2023 is an illegitimate form of service because it is not in line with Chapter VI of the BNSS, 2023. They maintained that though the proviso to the Section 64(2) of the BNSS, 2023 allows such summons to be served electronically, such service can only be done to those summons that contain the image of the seal of the Court. As Section 35 notice is not issued by a court but an investigating agency it should therefore be served personally. As per the amicus curiae, he also addressed the court on the Section (530) of the BNSS, 2023 that trials and proceedings under this kind of experience, may take place in electronic mode; this is mentioned in this section but investigations are deliberately outside the scope. Owing to this, they argued that serving notice under Section 35 by use of electronic is not allowed. Lastly, the amicus curiae pointed out the grave implications of the non adherence to a Section 35 notice which may result in the arrest and the person being notified and denied their freedom. They, therefore, contended that due process must be followed and the fundamental rights safeguarded and therefore such a notice must be served on the accused person in person.
Analysis by the Court and Final decision
After going by the submissions and other relevant statements of the BNSS, 2023, carefully, the Supreme Court sustained its former order and rejected the application of the State of Haryana. The court acknowledged that the legislature is actually embracing modern technology and hence the inclusions of electronic communications into the BNSS, 2023 defined under the Section 2(i). Nevertheless, the court established that the lawmakers have explicitly defined the finer processes that electronic communication is unacceptable.
The contrast between a Section 35 notice and other legal watches such as court summons was the aim of the analysis by the court. It was highlighted that a Section 35 notice weighs directly on the freedom of an individual since failure to adhere to it would mean an arrest. It is a substantive right that is guaranteed by the Article 21 of the Constitution. On the contrary, the non-compliance with a summons to a witness under Section 71 does not affect the freedom of the latter immediately because the witness has no liberty to impair.
The court also drew a line between the execution of a court and those of the executive. It stated that court summons is a judicial act whereas an investigating agency notice would be an executive act. That is why the process of one cannot be transferred to the other. The court indicated as well that the legislature had made clear that in other particular cases it intended that there be utilization of electronic communication when it came to the observances of an investigating agency with actions set aside such as issuance of a document to appear summons (Section 94) and sending of reports to a magistrate or victim (Section 193). Unlike a Section 35 notice, none of these procedures can directly affect the liberty of an individual.
The court held that omission of service electronically was a conscious act on the part of a Section 35 notice that had been done to safeguard the inherent rights of life and rights of the individual under the personal liberty. Cutting across specification into the introduction of a procedure would contravene this purpose. The Supreme Court thus affirmed its earlier quash and it the mandate that requires notice to be given to a person by way personal service of notices as seen in Section 35 of the BNSS, 2023 to protect the rights of an individual.
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