Supreme Court Clarifies: No Electronic Summons Under Section 35 Of BNSS, 2023

Case Title: Satinder Kumar Antil Versus Central Bureau of Investigation.

“Section 35 of the BNSS, 2023, provides for the arrest of persons by the Investigating Agency, ensuring that the person concerned appears before the Investigating Agency and cooperates with the investigation. The provision delineates the prerequisites that must be fulfilled before a person can be arrested without a warrant, keeping in mind the laudable objective of safeguarding the liberty of an individual.”

In a significant reiteration of procedural transparency and fairness, the Supreme Court of India has held that a notice issued under section 35 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) can not be served through WhatsApp or any other electronic means. This decision reinforces the judiciary’s commitment to Constitutional safeguards Under the fundamental rights under Section 21 i.e. Right to Life and Personal Liberty.

Recently, the supreme court dismissed the review plea filed by the State of Haryana which modified its earlier rulings from January 2025. The decision had made it clear that the summons or notices for appearance under Section 42A of CrPC, now under Section 35 of BNNS, 2023 must follow the appropriate legal procedure for the mode of service and not be issued via WhatApp or any other electronic communication.

Supreme Court of India emphasizes due process — Section 35 of BNSS notices cannot be served through WhatsApp or email.

Article 21: The constitutional Backbone

Article 21 of the Indian Constitution guarantees that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” 

This judgment reinforces three fundamental principles under Article 21:

1. Proper and Valid Service of Summon

2. Fair and Just Procedure 

3. Protection against the Arbitrary Actions

If a person is arrested without a valid notice, summons or warrant, it amounts to violation of constitutional guarantee against arbitrary deprivation of liberty. In such cases, affected individuals have the right to challenge the arrest by filing a writ petition before the High Court or the Supreme Court under Article 21, citing breach of personal liberty and procedural rights. 

Application Clause and Exceptions under BNSS, 2023:

This law will be referred to as the Bharatiya Nagarik Suraksha Sanhita, 2023. The rules outlined in this Sanhita, excluding those concerning Chapter IX (Security for keeping peace and good behaviour), Chapter XI (Preventive action of the police), and Chapter XII (Information to police and investigation), are excluded from this non-application clause and will not pertain to the State of Nagaland and tribal regions. 

The appropriate State Government may, through notification, implement such provisions - or any of them - to the entirety or any portion of Nagaland, and many tribal areas have special constitutional protections (under Article 371A and the Sixth Schedule). So, laws like BNSS cannot automatically override local customs and governance unless the state consents, as deemed appropriate. This can be accomplished with any supplementary, incidental, or consequential changes that may be detailed in the notification. This act will take effect on a date specified by the Central Government through a notification in the Official Gazette.

SC Rule: Section 35 Notices Must Follow Due Process, Not Digital Shortcuts:

In the significant rulings, the Supreme Court categorically held that:

The delivery of a notice under Section 35 of the judgement has explicitly excluded the issuance of a notice under Section 35 of the BNSS, 2023, from the scope of procedures allowed through electronic communication as outlined in Section 530 of the BNSS, 2023. The court determined that e-service can occur only in instances where the legislature explicitly permits it. The Court observed that electronic service is only permissible where explicitly allowed by the legislature, and Section 35 is not included among those provisions. 

The Court also remarked that a summons from a court under Sections 63 or 71 of the BNSS, 2023, and a notice from the Investigating Agency under Section 35 of the BNSS, 2023, cannot be seen as the same. However, the court made a clear distinction between the judicial and executive processes. A court-issued summons is a judicial act, while a notice from the Investigating Agency is an executive act. Therefore, the process outlined for a judicial action cannot be applied to the process outlined for an executive action," the Court stated.

The state's next argument was that because summons under Sections 94 and 193 can be delivered electronically, summons under Section 35 should also be permitted to be served in that manner. Section 94 is the "Summons to produce documents or other thing". Section 193 permits the electronic delivery of the particulars of the final report to the magistrate. "The Court noted that none of these processes affect an individual’s freedom," dismissing the analogy.

Therefore, when examined from any perspective, we cannot persuade ourselves that electronic communication serves as a legitimate method of notice under Section 35 of the BNSS, 2023, as its intentional exclusion clearly reflects the lawmakers' intent. The Court concluded that permitting electronic service for Section 35 notices would defeat the legislative intent.

Way Forward:

The Supreme Court’s decision regarding the delivery of notices under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, reinforces the importance of legislative purpose and constitutional protections. The Court has drawn a distinct line between permissible judicial procedures and executive actions that impact an individual's liberty by ruling that electronic communications such as WhatsApp or email cannot be used by law enforcement or investigative agencies to deliver such notices.

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