SC: Police can’t serve notice or summon through WhatsApp or other electronic means

NEW DELHI: Supreme Court has ruled WhatsApp or other electronic means cannot be used by police and other investigating agencies to serve notice to an accused to appear before it, Supreme Court has said while rejecting the plea of Haryana govt to allow police to serve notice through electronic means as it would adversely affect the liberty of the person.

Pressing for electronic means of serving summons, the state submitted that the new law of Bharatiya Nagarik Suraksha Sanhita allowed use of electronic means for court proceedings for issuance, service and execution of summons and warrant and that should be allowed to police also. But a bench of Justices M M Sundresh and N K Singh said that summons issued by a court is a judicial act, whereas a notice issued by the investigating agency is an executive act and the procedure prescribed for a judicial act cannot be read into the procedure prescribed for an executive act.

The court clarified that the issue of liberty is involved in the case of police summon as the person can be arrested for non-compliance of summon and in such cases it is appropriate that such a notice be served in person on the accused, and not through the mode of electronic communication. It accepted the submission of senior advocate Siddharth Luthra who is assisting the court as amicus curiae and told the bench that summons are to be served personally on the person, as per the regular mode of service.

"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. The procedure encapsulated in Section 35(6) of the BNSS, 2023, seeks to secure this fundamental right, from encroachment by the relevant Authority, and therefore, any attempt to interpret the provision as a mere procedural one, would amount to rewriting the provision itself ..The Legislature, in its wisdom, has specifically excluded the service of a notice under Section 35 of the BNSS from the ambit of procedures permissible through electronic communication," the bench said.

"When viewed from any lens, we are unable to convince ourselves that electronic communication is a valid mode of service of notice under Section 35 of the BNSS, since its conscious omission is a clear manifestation of the legislative intent. Introducing a procedure into Section 35 of the BNSS, that has not been specifically provided for by the legislature, would be violative of its intent," the Supreme Court bench said.