S. 35 BNSS | Notice Of Appearance Must Be Served Physically, WhatsApp Or Email Not Valid Modes: Karnataka High Court

The Karnataka High Court has recently observed that Section 35(3) does not empower the Police to communicate by WhatsApp or Email the pre-arrest notice or copy of the FIR. The court clarified that the physical service of notice at the pre arrest stage is mandatory as intended by the legislature.

The single judge bench of Justice M Nagaprasanna, relying on apex court decisions, held that electronic communication of notice under Section 35 BNSS [Section 41A of CrPC] is invalid as inferred from 'conscious omission' in the statute. The court iterated the apex court observation in Satender Kumar Antil v. CBI, 2026 LiveLaw (SC) 114, that it cannot introduce a procedure into Section 35 which is not intended by the legislature.

“…The Apex Court holds that electronic communication of the crime or any other communication is not what the legislature has thought of. Section 35(3) does not empower the Police to communicate an electronic copy or by whatsapp the notice or copy of the FIR. It has to be mandatorily given physically…”, the court opined.

The important excerpt from Satender Kumar Antil is as follows:

"The Legislature, in its wisdom, has specifically excluded the service of a notice under Section 35 of the BNSS, 2023 from the ambit of procedures permissible through electronic communication... The restrictions imposed by the Legislature on the use of electronic communication, to only certain procedures, precludes the use of electronic communication for any other procedure…”, noted the apex court.

The state submitted that the police had been searching for the petitioner for over 40 days to hand over a physical copy of the pre arrest notice. The petitioner, on the other hand, argued that the police could have simply sent the notice through electronic means if the intent was merely to inform him of the proceedings.

Yugadev and his wife, posing as Yoga teachers, had been running a company called Jai Bhairavi Devi ('JBD') collecting investments from the complainants. It is alleged that the couple duo has duped investors of nearly Rs 98 lakhs.

The petitioner was charged for offences under Sections 66(c) [identity theft] and 66(d) [cheating by personation by using computer resource] of the Information Technology Act, 2000, and Section 318(4) [Cheating and dishonestly inducing delivery of property] of the BNS at Adugodi Police Station on December 9,2025. However, he was only arrested on January 17, 2026 since he was evading police for over 40 days. Even on January 17, the police tried to serve the physical notice upon confronting him, however, the accused refused its acceptance.

When the accused was produced before the magistrate, his arrest was approved. He has challenged the said order before the High Court.

“…"The police have drawn reasons for arrest that the accused has been absconding. The jurisdictional magistrate in the impugned order also records that the petitioner did not accept the notice under Section 35(3) of the BNSS and refused to cooperate with the investigation and his arrest”, the single judge bench noted.

The court inferred that the factum of the accused evading the receipt of Section 35(3) BNSS notice physically for nearly 40 days amounts to 'non-cooperative behaviour'. The court, therefore, rejected the petition challenging the arrest.

“…. the Police have been searching the petitioner to hand over physical copy of 35(3) notice for 40 days. This would be enough circumstance to take the petitioner into custody for non-cooperative behaviour of the petitioner. No right of the petitioner, much less a constitutional right is lost, in the police taking the petitioner into custody. All the nuances of arrest are followed in the case at hand and the petitioner is then taken into custody”, the court further held that the failure to effect physical service of the pre arrest notice should be attributed to the accused himself. This, in turn, would justify the police custody, the court opined.

Appearance: Adv. Syed Khaleel Pasha for Petitioner; B.N. Jagadeesha (Addl. SPP) for Respondent 1.

Case Title: Mr. Yugadev R. v. State of Karnataka & Others

Case No: Crl. Petition No. 981 of 2026

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