SUPREME COURT ON ELECTRONIC SERVICE: WHY COURTS CAN WHATSAPP YOU BUT POLICE CANNOT

The Supreme Court of India in Satender Kumar Antil v. Central Bureau of Investigation (2025) INSC 909 drew a clear distinction between summons issued by a court and notices issued by investigating agencies under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Court held that while courts may serve summons electronically in specific situations, investigating agencies such as the police cannot serve notices under Section 35 of the BNSS through WhatsApp, email, or other electronic means. This ruling has significant implications for protecting personal liberty under Article 21 of the Constitution of India.

The BNSS, which replaced the Code of Criminal Procedure, 1973, contains separate provisions for summons and police notices. Sections 63 and 64 BNSS provide for the issue and service of court summons, permitting electronic service provided that the summons carries the court’s seal or its electronic image. Section 71 BNSS specifically authorises the electronic service of summons on witnesses. In contrast, Section 35 BNSS empowers an investigating officer to issue notices requiring a person to appear for questioning. Crucially, Section 35(6) provides that if a person fails to comply with such notice, the police may arrest them. Thus, while non-compliance with a court summons to a witness (Section 71) does not immediately threaten liberty, ignoring a Section 35 notice can directly result in arrest.

It was this stark difference in consequences that shaped the Court’s reasoning. The Supreme Court described court summons as a judicial act, backed by judicial authority and oversight, while a Section 35 notice issued by police is an executive act, exercised in the course of investigation (Satender Kumar Antil, paras 38–39). Judicial acts are insulated by judicial safeguards and therefore allow flexibility in the mode of service, including electronic service where expressly permitted by statute. Executive acts, however, directly affect the rights of individuals and must follow stricter compliance standards. The Court held that the procedure governing judicial summons cannot be extended to police notices, unless Parliament expressly provides for it.

The Court also relied on principles of statutory interpretation. The BNSS expressly includes provisions for electronic service in several contexts—for instance, Sections 64(2), 71, and 94—but makes no such provision in Section 35. Applying the maxim expressio unius est exclusio alterius (the express mention of one thing excludes others), the Court concluded that Parliament intentionally did not provide for electronic service of Section 35 notices. The omission, according to the Court, was deliberate and designed to protect the constitutional guarantee of personal liberty under Article 21. Since ignoring a Section 35 notice can result in immediate arrest, the legislature consciously mandated physical service to ensure that individuals receive fair and reliable notice before their liberty is put at risk (ibid., paras 42–44).

Practical considerations were also addressed. The State of Haryana had filed an application seeking modification of earlier directions, urging that police be permitted to serve Section 35 notices electronically for reasons of efficiency. The Supreme Court dismissed this application, reaffirming its earlier order of 21 January 2025, and held that administrative convenience cannot override the constitutional mandate to safeguard liberty (State of Haryana v. Satender Kumar Antil, Supreme Court, 2025). Since arrest is a direct consequence of non-compliance with Section 35, physical service remains the only valid mode.

Two real-life examples illustrate the difference. Suppose Ravi, a shopkeeper, is summoned as a witness under Section 71 BNSS in a theft case. The court may email him the summons with its official seal, and if he fails to appear, the court may issue another summons or, at most, a fine. His liberty is not immediately affected. Contrast this with Anita, who is suspected in a cybercrime case and receives a Section 35 notice from the police only on WhatsApp. If she does not respond, the police may treat it as refusal and arrest her under Section 35(6). Her personal liberty is directly at stake, which is why the Court prohibited electronic service of such notices.

In conclusion, the judgment draws a firm line: court summons are judicial acts that may be served electronically when permitted by statute, while police notices under Section 35 are executive acts that must be served physically. The Supreme Court has reaffirmed that while technology can modernise procedure, it cannot erode constitutional protections. The principle is clear—a court may serve a summons by email or WhatsApp where the law allows, but the police cannot serve Section 35 notices electronically. This careful distinction ensures that the fundamental right to personal liberty remains fully protected in criminal procedure.