The Supreme Court has ordered the police not to use WhatsApp or other electronic modes as an alternative medium to serve notice to the accused.
What is Section 41A CrPC and Section 35 BNSS:
The Supreme Court has ordered the police not to use WhatsApp or other electronic modes as an alternative medium to give notice to the accused. The court has given this instruction to the police regarding Section 41A of the Code of Criminal Procedure (Section 35 of the Bhartiya Nagrik suraksha sanhita).
Stop sending arrest notices on WhatsApp... What are Sections 41A and 35, on which SC gave orders to the police.
The Supreme Court has ordered the police not to use WhatsApp or other electronic modes as an alternative medium to serve notice to the accused. The court has given this instruction to the police regarding Section 41A of the Code of Criminal Procedure (Section 35 of the Indian Civil Defense Code). A bench of Justice MM Sundaresh and Justice Rajesh Bindal ordered all the states and union territories to issue a standing order to their respective police departments, asking them to issue such notices only through the prescribed mode of service under CrPC or BNSS.
In which case order given?
The Supreme Court also directed that notices under Section 160 of CrPC/BNSS, Section 179 of 2023 and Section 175 of CrPC/Section 195 of BNSS can be issued to the accused persons only through the mode of service prescribed under CrPC/BNSS.
A bench of Justices M.M. Sundresh and Rajesh Bindal passed these directions in Satendra Kumar Antil vs CBI, in which the Court had issued directions to prevent unnecessary arrests and ease the process of granting bail to deserving undertrials. The Court has been taking up the matter from time to time to monitor compliance of the directions by the States and High Courts.
In this case, senior advocate Siddharth Luthra raised the issue of giving notice under Section 41A CrPC by the police through WhatsApp. He cited the standing order dated January 26, 2024 issued by the office of the DGP, Haryana, which empowers the police officers to issue notices under Section 41-A of CrPC, 1973 / Section 35 of BNSS, 2023 in person or through WhatsApp e-mail SMS Allows notices to be given in person or through WhatsApp, e-mail, SMS or any other electronic mode.
He said, in the 2022 decision of Satendra Kumar Antil, the Supreme Court had upheld the decision of the Delhi High Court in Rakesh Kumar vs Vijayant Arya (DCP) and others. Which held that notice given through WhatsApp or other electronic means is not considered as a mode of service under Section 41-A of CrPC, 1973 (which is now Section 35 of BNSS, 2023) as it is not in accordance with Chapter VI of CrPC, 1973.
Therefore, he submitted that the police system should not circumvent the mandate of Section 41-A of the CrPC, 1973 / Section 35 of the BNSS, 2023 by giving notice through WhatsApp or other electronic modes, instead of following the normal mode of service.
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