Police Summons Under Section 35 BNSS Can't Be Served Electronically : Supreme Court Reiterates

The Supreme Court has reiterated that the summons issued by the police/investigating agency to an accused for appearance as per Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) cannot be served electronically.

The Court rejected an application filed by the State of Haryana to modify its earlier direction issued in January 2025 that summons for appearance under Section 41A CrPC/Section 35 BNSS cannot be served through WhatsApp or other electronic means.

Though the new criminal law BNSS provides for the electronic service of notice, it can be availed only in situations where it is specifically allowed; since electronic service is not specifically mentioned in Section 35, it cannot be resorted to, the Court said.

Since the non-appearance pursuant to a notice under Section 35 BNSS can be a ground for arrest, the Court said that it has to adopt an interpretation which subserves the cause of personal liberty under Article 21 of the Constitution.

A bench comprising Justice MM Sundresh and Justice NK Singh observed :

"..service of a notice under Section 35 of the BNSS, 2023 needs to be carried out in a manner that protects this substantive right, as non-compliancewith the notice can have a drastic effect on the liberty of an individual.

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, that have been delineated under Section 530 of the BNSS, 2023."

The Court held that e-service can be effected only in situations where it is specifically allowed by the legislature. Therefore, the Court rejected the argument advanced by the State of Haryana that since summons for appearance in the Court, as per Sections 63, 64 and 71 of the BNSS, can be electronically served, police can also carry out e-service of the summons. In this regard,the Court highlighted the difference between inquiry, investigation and judicial proceedings.

"The contention of the applicant that a notice under Section 35 of the BNSS, 2023 falls within the same category as a summons under Section 71 of the BNSS, 2023, and therefore, since the latter allows electronic mode of service, the former must also be permitted to be transmitted electronically, cannot be accepted, for the simple reason that a summons under Section 71 of the BNSS, 2023, has no immediate bearing on the liberty of an individual in case of its non-compliance. However, a notice under Section 35 of the BNSS, 2023 could have an immediate bearing on the liberty of the individual in case of its non-compliance, as laid down under Section 35(6) of the BNSS, 2023," the Court observed.

The Court further stated that a summons issued by a Court under Sections 63 or 71 of the BNSS, 2023, and a notice issued by the Investigating Agency under Section 35 of the BNSS, 2023 cannot be equated with each other.

"A summons issued by a Court is a judicial act, whereas a notice issued by the Investigating Agency is an executive act. Hence, the procedure prescribed for a judicial act cannot be read into the procedure prescribed for an executive act," the Court said.

The next contention of the State was that since summons under Section 93 and 193 can be served electronically, S.35 summons should also be allowed to be served so. Section 93 is the summons to produce a document. Section 193 allows the service of the particularts of the  final report to the magistrate electronically.

"None of these procedures have any bearing on the liberty of an individual," the Court observed, rejecting the comparison.

"Hence, when viewed from any lens, we are unable to convince ourselves that electronic communication is a valid mode of service of notice under Section 35 of the BNSS, 2023, since its conscious omission is a clear manifestation of the legislative intent. Introducing a procedure into Section 35 of the BNSS, 2023, that has not been specifically provided for by the Legislature, would be violative of its intent," the Court stated in conclusion.

Senior Advocate Siddharth Luthra, the amicus curiae in the case, also opposed the argument of the State of Haryana.

Case : Satinder Kumar Antil v. Central Bureau of Investigation | IA NO. 63691 OF 2025 in  SLP(Crl). 5191 OF 2021

Citation : 2025 LiveLaw (SC) 751

Click here to read the judgment