Police cannot summon accused, suspects or witnesses through WhatsApp or other kinds of electronic messages but must stick to the established practice of issuing formal notices on paper and securing acknowledgment receipts, the Supreme Court has said.

The bench of Justice M.M. Sundresh and Justice Rajesh Bindal passed a slew of directions to the states and Union Territories (UTs) after senior advocate and amicus curiae Siddharth Luthra provided details about the police’s new tendency to issue notices via WhatsApp.

Luthra said the practice was not permissible, either under the Code of Criminal Procedure (CrPC), 1973, or under its new avatar, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

He cited instances where notices under Section 41A of the CrPC were sent to the accused through WhatsApp, but the accused did not appear before the investigating officer. No action was taken against the erring officers.

Luthra also flagged a “standing order” of January 26, 2024, from the office of the Haryana DGP that permits officers to serve notices under Section 41A of the CrPC — or its equivalent, Section 35 of the BNSS — in person or through WhatsApp, email, SMS or any other electronic mode.

These two sections allow a police officer to arrest a person without a warrant if the officer has reason to believe the person has committed a cognisable offence. However, they also allow the officer, if he or she believes there’s no immediate reason for arrest, to summon the suspect.

The latest directives came as part of the bench’s regular monitoring of the implementation of orders that the apex court had passed in Satender Kumar Antil v CBI & Anr (2022) to try and improve police compliance with criminal procedure.

Luthra referred to how the 2022 judgment by the top court had upheld a 2021 Delhi High Court ruling that held that WhatsApp and other electronic platforms did not provide a valid mode of serving notices under criminal procedure.

Section 532 of the BNSS says that all trials, inquiries and proceedings under it may be held in electronic mode, and by use of electronic communication or audiovisual means.

However, Luthra stressed, even this section does not permit notices under Section 35 to be served via WhatsApp or other electronic platforms.

Agreeing with the submission, the bench issued the following directions:

n All states and UTs must pass a “standing order” directing their police forces to issue notices under Section 41A of CrPC or Section 35 of the BNSS only through the prescribed mode and not through WhatsApp or other electronic modes.

n These “standing orders” must comply with guidelines issued by Delhi High Court in Rakesh Kumar v Vijayanta Arya (DCP) & Ors, 2021, and Amandeep Singh Johar v State (NCT Delhi), 2018, both upheld by the apex court in Satender Kumar (2022).

n All states and UTs must pass an additional “standing order” asking the police to issue notices (to witnesses) under Section 160 of the CrPC or Section 179 of the BNSS, or to summon the accused under Section 175 of the CrPC or Section 195 of the BNSS, only through the prescribed mode.

n All high courts must hold monthly meetings of their committees for “ensuring the implementations of the (past and future) decisions of the apex court”, and also to make sure that the authorities concerned submit monthly compliance reports.