Section 35 of BNSS

Source: Supreme Court  

Why in News? 

Recently, Justice MM Sundresh and Justice NK Singh held that summons under Section 35 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) cannot be served through electronic means like WhatsApp, as such service is not expressly permitted and may infringe upon the personal liberty guaranteed under Article 21 of the Constitution. 

• The Supreme Court held this in the matter of Satinder Kumar Antil v. Central Bureau of Investigation (2025). 

What was the Background of Satinder Kumar Antil v. Central Bureau of Investigation (2025) Case ? 

• The present case arose from an application filed by the State of Haryana seeking modification of a Supreme Court order dated 21st January 2025. The original order had directed all States and Union Territories to issue Standing Orders to their police machinery regarding the service of notices under Section 41-A of the Code of Criminal Procedure, 1973 (CrPC) and Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). 
• The Supreme Court had previously mandated that notices under the aforementioned provisions could only be served through the prescribed modes of service as recognised under the CrPC, 1973 and BNSS, 2023. The Court had categorically held that service through WhatsApp or other electronic communication platforms could not be considered as an alternative or substitute to the statutorily prescribed modes of service. 
• The original order required strict compliance with guidelines established by the Delhi High Court in two landmark cases: Rakesh Kumar v. Vijayanta Arya (DCP) & Others (2021) and Amandeep Singh Johar v. State (NCT Delhi) (2018). These guidelines had been subsequently upheld by the Supreme Court in Satender Kumar Antil v. CBI & Another (2022) 10 SCC 51. 
• The State of Haryana approached the Supreme Court contending that the prohibition on electronic service was impractical and resource-intensive. They argued that notices under Section 35 of BNSS, 2023 were merely informational, directing persons to join investigations without immediate liability for arrest. The State emphasised that electronic service would prevent evasion of service and conserve precious state resources. 
• The Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the CrPC, 1973, introduced several provisions recognising electronic communication. Section 64(2) permits electronic service of court summons bearing the court's seal, while Section 71 allows electronic service of witness summons. Section 530 enables trials, inquiries, and proceedings to be conducted electronically. 
• The fundamental issue before the Court was whether the legislative recognition of electronic communication in certain provisions of BNSS, 2023 could be extended to notices issued by investigating agencies under Section 35, particularly given the potential consequences of non-compliance, including arrest and deprivation of liberty. 

What were the Court’s Observations? 

• The Legislature, in enacting BNSS 2023, has consciously and deliberately excluded the service of notices under Section 35 from the ambit of procedures permissible through electronic communication as delineated under Section 530, and this conscious omission constitutes a clear manifestation of legislative intent. 
• Service of a notice under Section 35 of BNSS 2023 needs to be carried out in a manner that protects the substantive right to liberty, as non-compliance with the notice can have a drastic effect on the liberty of an individual under Section 35(6). 
• A summons issued by a Court under Sections 63 or 71 of BNSS 2023 constitutes a judicial act, whereas a notice issued by the Investigating Agency under Section 35 constitutes an executive act, and hence the procedure prescribed for a judicial act cannot be read into the procedure prescribed for an executive act. 
• The Legislature has particularly specified circumstances in which usage of modes of electronic communication is permissible, being circumstances which do not have a bearing on the liberty of an individual, thereby safeguarding the right to life and personal liberty guaranteed under Article 21 of the Constitution. 
• While BNSS 2023 does not entirely preclude the use of electronic communication by the Investigating Agency, such usage has only been provided for under Sections 94(1) and 193(3), and none of these procedures have any bearing on the liberty of an individual. 
• The essence of Article 21 of the Constitution imbues the BNSS 2023, which reflects the laudable objective of safeguarding the liberty of an individual while facilitating the investigation into and adjudication of offences. 
• Introducing a procedure into Section 35 of BNSS 2023 that has not been specifically provided for by the Legislature would be violative of legislative intent and contrary to the purposive interpretation of the statutory scheme. 

What is Section 35  of BNSS ? 

About: 

• Section 35 of the BNSS 2023 is a provision that empowers police officers to arrest any person without obtaining a warrant from a Magistrate in specific circumstances involving cognizable offences. 

Grounds for Arrest Without Warrant: 

Immediate Arrest Situations: 

• When a person commits a cognizable offence in the presence of a police officer. 
• When credible information is received that a person has committed a cognizable offence punishable with imprisonment for more than seven years, with or without fine, or with death sentence. 
• When a person has been proclaimed as an offender under BNSS or by State Government order. 
• When stolen property is found in someone's possession and they are reasonably suspected of committing an offence related to it. 
• When a person obstructs a police officer in execution of duty or has escaped or attempts to escape from lawful custody. 
• When a person is reasonably suspected of being a deserter from the Armed Forces. 
• When a person is involved in an act committed outside India which would be punishable as an offence if committed in India. 
• When a released convict breaches rules made under Section 394(5). 
• When a requisition for arrest is received from another police officer. 

Conditional Arrest for Offences Up to Seven Years:  

• For cognizable offences punishable with imprisonment for less than seven years or extending up to seven years, arrest is permitted only if specific conditions are satisfied: 
  • The police officer has reason to believe the person committed the offence based on reasonable complaint, credible information, or reasonable suspicion. 
  • The police officer is satisfied that arrest is necessary for preventing further offences, proper investigation, preventing evidence tampering, preventing inducement or threats to witnesses, or ensuring court appearance. 
  • The police officer must record reasons in writing while making the arrest. 
• Notice Procedure (Alternative to Arrest):  
  • When arrest is not required under the above provisions, the police officer must issue a notice directing the person to appear before him or at a specified place.  
  • The person has a duty to comply with the notice terms, and as long as they comply, they cannot be arrested unless the police officer records specific reasons for arrest necessity. 
• Consequences and Safeguards:  
  • If a person fails to comply with the notice or is unwilling to identify themselves, the police officer may arrest them for the offence mentioned in the notice, subject to any orders passed by a competent court.  
  • For offences punishable with imprisonment of less than three years, prior permission from an officer not below the rank of Deputy Superintendent of Police is required before arresting infirm persons or those above sixty years of age. 
  • The provision includes a mandatory safeguard requiring police officers to record reasons in writing when arrest is not made, ensuring accountability and preventing arbitrary arrests while balancing law enforcement needs with protection of individual liberty.