NEW DELHI, Jan 28: The Supreme Court has clarified that police cannot summon accused individuals, suspects, or witnesses via WhatsApp or any electronic messaging platform, and must adhere to the established practice of issuing formal notices on paper. This directive was issued by a bench of Justice M.M. Sundresh and Justice Rajesh Bindal after senior advocate and amicus curiae Siddharth Luthra raised concerns over a growing tendency by the police to issue summons through WhatsApp.

Luthra informed the court that the police’s practice of sending notices via WhatsApp under Section 41A of the Criminal Procedure Code (CrPC), 1973, or its counterpart in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, was not permissible. He cited instances where notices were sent via WhatsApp to accused individuals, but the recipients failed to appear before investigating officers, with no action taken against the responsible officers. Luthra also highlighted a standing order issued on January 26, 2024, by the Haryana Director General of Police (DGP) allowing officers to serve notices via electronic means, including WhatsApp, email, and SMS, under Section 41A of the CrPC or Section 35 of the BNSS.

Section 41A of the CrPC and Section 35 of the BNSS permit police officers to arrest individuals without a warrant if they believe the person has committed a cognizable offense. However, these provisions also allow police to summon suspects if there is no immediate need for arrest. Despite this, Luthra pointed out that the practice of issuing notices via WhatsApp does not comply with the law, as upheld in the 2022 judgment in Satender Kumar Antil v CBI & Anr. In that case, the Supreme Court had ruled that WhatsApp and other electronic platforms could not be used to serve notices under criminal procedure.

The bench concurred with Luthra’s submission and issued several directives aimed at ensuring the proper implementation of criminal procedure:

1. All states and Union Territories (UTs) must issue a “standing order” requiring police forces to serve notices under Section 41A of the CrPC or Section 35 of the BNSS using only the prescribed methods, excluding WhatsApp and other electronic platforms.
2. These “standing orders” must comply with guidelines from the Delhi High Court, including those from the 2021 Rakesh Kumar v Vijayanta Arya case and the 2018 Amandeep Singh Johar v State case, both of which were upheld by the Supreme Court in the Satender Kumar Antil judgment.
3. Additional standing orders must be issued directing police to issue notices to witnesses under Section 160 of the CrPC or Section 179 of the BNSS, and summons to the accused under Section 175 of the CrPC or Section 195 of the BNSS, using the prescribed formal methods.
4. High courts are also required to hold monthly meetings of their committees to ensure compliance with the Supreme Court’s decisions and ensure that authorities submit monthly reports on their adherence to these directives.