No E-Service for Section 35 BNSS Notices: Supreme Court Reinforces Personal Service Requirement
Commentary on Satender Kumar Antil v. Central Bureau Of Investigation & Anr., 2025 INSC 909

1. Introduction

In Satender Kumar Antil v. Central Bureau Of Investigation (2025), the Supreme Court of India confronted a seemingly narrow procedural question with wide constitutional consequences: Can notices issued by the police under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) be served through electronic platforms such as WhatsApp?

The Applicant, the State of Haryana, sought modification of an earlier apex-court order (21.01.2025) that had forbidden e-service of such notices and directed all States/UTs to issue Standing Orders accordingly. The respondents were the C.B.I. and an amicus curiae appointed by the Court.

While the Case title bears the petitioner’s name, the substantive lis centred around the State’s plea to recognise electronic service as a valid mode. The Court’s refusal creates a new precedent carving out an explicit limitation on the otherwise technology-friendly BNSS framework.

2. Summary of the Judgment

• The Court dismissed I.A. No. 63691/2025 filed by the State of Haryana, thereby confirming its earlier order dated 21.01.2025.
• Holding: Notices under Section 35 BNSS—whose non-compliance can lead to arrest—must be personally served in the modes prescribed in Chapter VI BNSS/Chapter VI CrPC; service via WhatsApp or any other electronic communication is not valid.
• Legislative intent shows a conscious decision to exclude investigations from the electronic-mode procedures listed in Section 530 BNSS.
• Reliance on Section 64(2) & Section 71 BNSS (which allow e-summons) is misplaced because court summons and police notices occupy fundamentally different planes.
• Safeguarding personal liberty under Article 21 of the Constitution underpins the ruling; electronic service in investigations could jeopardise that liberty.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. Amandeep Singh Johar v. State (NCT Delhi), 2018 SCC OnLine Del 13448
   – Delhi High Court laid down elaborate guidelines on Section 41-A CrPC (analogous to Section 35 BNSS) requiring personal service of notice. Significance: formed the bedrock of the Supreme Court’s earlier 2022 order.
2. Rakesh Kumar v. Vijayanta Arya (dcp), 2021 SCC Online Del 5629
   – Reiterated and refined the Johar guidelines, emphasising accountability in service of notice and arrest procedure.
3. Satender Kumar Antil v. C.B.I., (2022) 10 SCC 51
   – The Supreme Court upheld both Delhi High Court rulings, embedding personal service as a nationwide standard. The present case essentially defends and extends that standard under the new BNSS regime.

3.2 Legal Reasoning

The Court’s reasoning unfolds in five inter-locking steps:

1. Statutory Textualism with Purposive Overtones
   • Section 530 BNSS expressly permits electronic mode for “trials, inquiries and proceedings”—not investigations.
   • Expressio unius est exclusio alterius: mention of e-mode for some procedures implies exclusion for others (investigation).
   
2. Nature of the Act: Investigative Notice vs. Judicial Summons
   • A Section 35 notice emanates from the executive and can culminate in arrest (deprivation of liberty);
   • Court summons (Sections 63, 64, 71) occur within a judicial process and do not ipso facto imperil liberty.
   Hence, the more stringent service safeguard for Section 35 is justified.
3. Article 21 & Liberty
   • Non-compliance with a Section 35 notice triggers the possibility of arrest. Therefore the mode of service must ensure actual knowledge, reducing scope for inadvertent default.
   • Personal service, the Court held, offers the best assurance of notice, aligning with the constitutional mandate to minimise arbitrary deprivation of liberty.
4. Comparison with Electronic Provisions within BNSS
   • Sections 94(1) & 193(3) explicitly let the police use electronic communication for summons to produce documents or for forwarding final reports.
   • The Court inferred that the legislature’s conscious omission of Section 35 from this list indicates a deliberate choice.
5. Policy Consistency & Federal Directives
   • The earlier January 2025 order had asked all States/UTs to issue Standing Orders. Reversing that mandate would create administrative chaos.
   • No compelling change in law after the 2022 ratio or in BNSS text warranted departure.

3.3 Anticipated Impact

• Operational Changes for Police Forces
  – State police must invest in processes for physical/personal service (e.g., dedicated process-servers, postal tracking) rather than relying on rapid e-modes.
  – Standing Orders will need continuous audit for compliance; failure could vitiate arrests and lead to litigation.
• Judicial Scrutiny of Arrests
  – Defence counsel will likely challenge arrests more often on the ground of defective service; trial courts must verify proof of personal service.
• Technological Reform Debate
  – Legislatures may face pressure to amend BNSS to authorise e-service with adequate safeguards (digital signature, acknowledgement protocols, etc.).
• Precedential Strength
  – The ruling cements a liberty-centric reading of criminal procedure and could influence any technological innovation (e-FIR, virtual arrest warrants, etc.).

4. Complex Concepts Simplified

Section 35 BNSS Notice

A written directive by the police requiring a suspect to appear for investigation when arrest is not deemed immediately necessary.

Summons vs. Notice

Summons originate from a court; non-compliance invites judicial penalties, not instant arrest. A Section 35 notice is executive; breach can justify arrest without warrant.

Investigation, Inquiry, Trial

• Investigation: Police fact-finding to collect evidence.
• Inquiry: Magistrate’s preliminary examination (pre-trial).
• Trial: Judicial determination of guilt.
Electronic mode is authorised only for the latter two, not the first.

Purposive Interpretation

Court reads statutes by looking at the purpose behind them, not merely literal words, especially when liberty rights are implicated.

Standing Order

An administrative circular binding on the police force within a State/UT, prescribing uniform procedure.

5. Conclusion

The Supreme Court’s 2025 decision does more than settle a procedural quibble—it draws a bright constitutional line: when a statutory mechanism carries the latent power to arrest, service of process must be robust, tangible and personally acknowledged.

By disallowing WhatsApp and similar platforms for Section 35 BNSS notices, the Court re-affirms that technological convenience cannot eclipse the fundamental right to personal liberty under Article 21. While the BNSS embraces digital transformation in many arenas, the investigative stage remains tethered to traditional safeguards—unless Parliament chooses otherwise through clear legislative text.

For practitioners, investigating agencies, and policymakers, the takeaways are clear:

• Strict adherence to personal service is non-negotiable for Section 35 notices.
• Electronic service in criminal procedure is permissible only where the statute explicitly authorises it.
• Any deviation risks vitiating arrests and subsequent proceedings, inviting constitutional scrutiny.

Ultimately, Satender Kumar Antil 2025 consolidates a liberty-protective doctrine that will shape Indian criminal jurisprudence in the digital age.