New Delhi, Jan 27 The Supreme Court has taken a view that police machinery should not serve notices to the accused through WhatsApp or other electronic modes.
“All the States/UTs must issue a Standing Order to their respective Police machinery to issue notices under Section 41-A of CrPC, 1973/Section 35 of BNSS, 2023 only through the mode of service as prescribed under the CrPC, 1973/BNSS, 2023. 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,” said a bench of Justices MM Sundresh and Rajesh Bindal.
The Justice Sundresh-led Bench added that states and Union Territories(UTs) must issue an additional Standing Order to their respective Police machinery to issue notices to the accused persons or otherwise, only through the mode of service as prescribed under the Code of Criminal Procedure (CrPC), 1973 or BNSS (Bharatiya Nagarik Suraksha Sanhita) 2023.
Senior advocate Siddharth Luthra, amicus curiae (friend of the court) flagged that the service of notice is to be made in person, as contemplated under the law, and not through WhatsApp or other electronic modes.
Luthra added that notice(s) under Section 41-A of CrPC, 1973 were sent to the accused through WhatsApp, but the accused did not appear before the Investigating Officers and no action was taken against such erring officers.
Further, he brought to the attention of the top court a Standing Order issued by DGP (Director General of Police), Haryana, permitting officials to serve notices in person or through WhatsApp, e-mail, SMS or any other electronic mode.
The amicus curiae referred to the decision of the apex court in Satender Kumar Antil v. CBI (2022), upholding the Delhi High Court’s view that notice served through WhatsApp or other electronic modes is not contemplated as a mode of service under Section 41-A of CrPC, 1973 (now Section 35 of BNSS, 2023) since the same is not in accordance with Chapter VI of CrPC, 1973 (now Chapter VI of BNSS, 2023) and hence cannot be treated as a valid mode of serving notice.
He also made reference to Section 532 of BNSS, 2023 which states that all trials, inquiries and proceedings may be held in electronic mode, by use of electronic communication or use of audio-video electronic means, but does not permit notice under Section 35 of BNSS, 2023 to be served through WhatsApp or other electronic modes.
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