Service By WhatsApp Is Not Service: Section 35 BNSS And Limits Of Informal Electronic Notice

When the Bharatiya Nagarik Suraksha Sanhita, 2023 (the BNSS) was enacted, many police authorities started to serve notices under section 35^[2] via WhatsApp and email. The rationale behind this approach was clear. Electronic communication is typically faster, less expensive and more practicable than traditional physical delivery of notices, especially if the individual to be notified is untraceable. In addition, given that much government communications are now delivered electronically, this type of notification seems to be both convenient and unavoidable.

However, after Satender Antil case, the Supreme Court disagreed with that perspective. It ruled that a notice issued pursuant to section 35 may not be served via WhatsApp or any other informal mode of electronic communication within the current statutory structure. The basis for this decision was not based on opposition to technology. Rather, the basis of the decision was rooted in a constitutional concern. If compliance with a notice could lead to an individual being arrested, then the law must ensure that the notice is effectively communicated to the individual who the notice is directed towards.

This decision poses another significant issue regarding how criminal procedure will evolve in India. How does the legal system appropriately weigh technological convenience against fair procedures? This decision provides one possible solution; however, it also highlights a potential legislative vacuum that Parliament may have to fill at some point in time.

Why Section 35 Notices Matter

When Section 35 is considered in relation to its constitutional roots, the full implications of the court's ruling are apparent. In fact, the concept for Section 35 originated in Section 41-A of the Code of Criminal Procedure (hereafter referred to as "the Code"), which was enacted to limit the number of times people would be arrested unnecessarily, thereby limiting the use of arrest to situations where such a measure is truly necessary.

In the case of Arnesh Kumar v. State of Bihar^[3], the Supreme Court expanded upon the principles established by Section 41-A and formally incorporated those principles into a constitutional right. The Supreme Court emphasized that all forms of arrest represent direct attacks on personal liberties; thus, they should not be carried out arbitrarily. One important purpose served by a notice requiring an individual to appear before an investigating officer is to provide a means whereby individuals can choose to cooperate fully with investigations initiated against them and/or their businesses, etc., and at the same time avoid being arrested immediately.

The provisions contained in Section 35 of the BNSS follow this line of reasoning. In general, compliance with the notice will shield an individual from being arrested, whereas non-compliance may allow the investigating officer to continue his/her pursuit of additional information pursuant to applicable laws. Therefore, the notice serves a function greater than simply procedural. Instead, the notice represents a critical mechanism for preventing arbitrary deprivations of liberty.

Thus, whether or not the notice has an effective impact on an individual's liberty is not solely dependent upon its issuance, but also upon whether or not it is communicated effectively to the persons who are subject to the terms of said notice. If a safeguard designed to prevent deprivation of liberty does not reach its intended recipient, then it cannot possibly serve the intended protection of liberty.

Why the Supreme Court Rejected WhatsApp Service

Although the State of Haryana in Satender kumar's case contended that the Electronic Service should be considered as a valid form of communication even without express reference in Section 35, the Supreme Court did not agree with this view.

The Court made a distinction between court-issued summonses and notices issued by police investigators. The BNSS provides specifically for electronic service regarding certain judicial processes. Therefore, parliament was cognizant of electronic communication and intentionally authorized its use when deemed suitable. There is no similar authorization in Section 35.

Moreover, the Court pointed out that the BNSS authorizes electronic communication in other contexts related to the investigative agencies. Specifically, Sections 94^[4] and 193^[5] authorize electronic forms of service for certain investigative functions and reporting requirements. This fact is important since it shows clearly that parliament recognized how technology can assist in the criminal process. Since there is no corresponding authority in Section 35, this supports the Court's conclusion that electronic service of these types of notices were deliberately omitted from the statutory scheme.

Further, the Court emphasized the potential consequences of failing to comply with such notice. A court summons exists within the context of a judicial process which includes additional procedural protections prior to coercive actions being taken. On the other hand, a Section 35 notice emanates from the investigative agency itself and serves as the predicate for an arrest if unheeded.

The Court also clarified that compliance or lack thereof with a Section 35 notice will not automatically result in an arrest. In cases where an individual fails to comply with a notice, the investigating officer must make an independent determination based upon his assessment whether an arrest would be required for the purpose of conducting an investigation. While ultimately remaining within the discretion of statute (and not an automatic response), nonetheless the risk of arrest resulting from a failure to respond to a notice highlights why such notice must be served in accordance with a reliable and lawful means.

Given those considerations, the Court determined that simply sending a message to a cell phone does not equate to serving notice so as to ensure that an individual has actually read and/or understood said notice. Cell phones are subject to change; devices are often shared; internet access varies widely throughout India. Delivery confirmation of a message establishes that a message was delivered to a device, but it does not necessarily establish who received the message.

Therefore, viewed through the prism of Article 21^[6], the question raised was not about the capability of technology but about providing due process. When personal liberty is at issue, the law must provide a reliable way of service. Consequently, the Court concluded that the current statutory framework does not allow informal electronic methods to meet that standard.

The Practical Dilemma

Although electronically served judgments are considered to be legally binding they highlight the serious challenges faced by investigating authorities. Physical service of process can sometimes prove challenging when addresses are out of date, or if people have moved. In addition, geography can play a significant role as well in making service impractical at best.

It is therefore understandable why electronic service has been perceived as beneficial given its ability to overcome the many challenges presented by physical service. However, there is a danger that an overzealous approach may create unintended obstacles which could ultimately hinder compliance with the requirements of the Notice provisions.

However, while convenience should not be a legal substitute, the purpose of Section 35 is not just to provide information, but rather to afford an individual with a reasonable opportunity to participate before taking any coercive action. If any alternative were to compromise this fundamental purpose, then the underlying rationale for including such provisions would be undermined.

The Way Forward

The judgment should not be considered as an objection of using technology in criminal investigations. The concern that has been identified by the court in section 35 was that the absence of any legal framework governing the electronic services of notice.

It doesn't mean that the digital services is inherently incompatible with the objectives of new criminal law. On the another hand, there is a strong case for introducing a carefully regulated mechanism that permits the electronic evidence while ensuring its authenticity and accountability. Further, such system that requires not only verified contact details of the addressee and reliable method of confirming the receiving of such service. In such cases, the traditional mode of service should be continued, unless the safeguards are not sufficient.

The Supreme Court's decision in Satender Kumar Antil is ultimately a reminder that procedural safeguards derive their value from their ability to protect individual liberty. A notice that does not genuinely reach the person concerned cannot serve that purpose, regardless of how efficiently it is transmitted.

The judgment does not close the door on digital innovation in criminal procedure. Instead, it signals that technological convenience must operate within a framework that respects constitutional guarantees. The challenge now lies with Parliament to design such a framework and ensure that modernisation does not come at the cost of fairness.

1. Satender Kumar Antil v. CBI, 2025 INSC 909 ↑

2. Section 35, Bharatiya Nagarik Suraksha Sanhita, 2023. ↑

3. Arnesh Kumar v. State of Bihar, 2014 INSC 463. ↑

4. Section 94, Bharatiya Nagarik Suraksha Sanhita, 2023. ↑

5. Section 193, Bharatiya Nagarik Suraksha Sanhita, 2023. ↑

6. Article 21, The Constitution of India, 1950. ↑