State of Haryana v. Satender Kumar Antil & Anr.

Case snapshot

Sections / provisions: BNSS 35

Questions before the Court / Tribunal

• Mode of service of notice before arrest: The reported Supreme Court order concerns statutory notice before arrest and rejects WhatsApp/electronic service as a substitute for the prescribed mode in the context considered. Finin2min should state the operative direction only after checking the official order and connected earlier proceedings.

Material facts and background

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest; or (c) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; or (d) who has been proclaimed as an offender either under this Sanhita or by order of the State Government; or (e) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be...

whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (4) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (5) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (6) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice. (7) No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.” (emphasis supplied)

20.Section 35 of the BNSS, 2023 provides for arrest of persons by the Investigating Agency, ensuring that the concerned person appears before the Investigating Agency and cooperates with the investigation. The provision delineates the prerequisites that must be fulfilled before a person can be arrested without a warrant, keeping in mind the laudable objective of safeguarding the liberty of an individual. The legislative intent behind the provision is that of restricting arbitrary arrests. 21.Section 35(3) of the BNSS, 2023 mandates the service of a notice whenever the Investigating Agency, on the basis of a reasonable complaint, credible information or suspicion, determines that a person may have committed a cognizable offence, but does not deem the arrest of such person necessary. In 10

Appellant / assessee submissions

The judgment copy does not separately set out this component in a distinct section; refer to the full order and the reasoning section below.

Revenue / respondent submissions

The judgment copy does not separately set out this component in a distinct section; refer to the full order and the reasoning section below.

Court / Tribunal analysis and reasoning

24.Therefore, the abovementioned provision contains an element of substantivity, which becomes evident from the discretion provided to the Investigating Agency. The substantive element is in the nature of a safeguard, especially when the liberty of an individual is involved. 25.The protection of one’s liberty is a crucial aspect of the right to life guaranteed to each and every individual, under Article 21 of the Constitution of India, 1950 (hereinafter referred to as the ‘Constitution’). The procedure encapsulated in Section 35(6) of the BNSS, 2023, seeks to secure this fundamental right, from encroachment by the relevant Authority, and therefore, any attempt to interpret the provision as a mere procedural one, would amount to rewriting the provision itself. 26.Thus, 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-compliance with the notice can have a drastic effect on the liberty of an individual. 27.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,...

by the Court. While the former is to investigate an offence, the latter is a search towards the truthful determination of an occurrence. Therefore, the procedure of one cannot be read into the other. Section 63 of the BNSS, 2023 “63. Form of summons.—Every summons issued by a Court under this Sanhita shall be,— (i) in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court; or (ii) in an encrypted or any other form of electronic communication and shall bear the image of the seal of the Court or digital signature.” (emphasis supplied)

37.Section 71 of the BNSS, 2023 provides for the service of summons on witnesses. We are concerned with sub-section (1) which states that a Court issuing a summons to a witness may direct a copy of such summons to be served by electronic communication. 38.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,

41.The usage of electronic communication by the Investigating Agency, has only been provided for effecting the procedure under Sections 94 and 193 of the BNSS, 2023. 42.Section 94 deals with issuance of summons, in an electronic form, to produce a document. Section 193 deals with the usage of electronic communication for forwarding the report to a Magistrate, upon completion of the investigation, or to inform the progress of the investigation to the informant or victim. None of these procedures have any bearing on the liberty of an individual. 43.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.

Operative decision and relief

40.We further wish to take note of the fact that the BNSS, 2023 does not entirely preclude the use of electronic communication by the Investigating Agency. The Legislature has envisioned the use of electronic communication, during the course of investigation, and upon completion of investigation by the Investigating Agency, specifically provided for under Sections 94(1) and 193(3) of the BNSS, 2023 respectively.

Section 94(1) of the BNSS, 2023 “94. Summons to produce document or other thing(1) Whenever any Court or any officer in charge of a police station considers that the production of any document, electronic communication, including communication devices, which is likely to contain digital evidence or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Sanhita by or before such Court or officer, such Court may issue a summons or such officer may, by a written order, either in physical form or in electronic form, require the person in whose possession or power such document or thing is believed to be, to attend and produce it, or to produce it, at the time and place stated in the summons or order.”

Authorities and precedents appearing in the judgment

• Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors
• Singh Johar v. State (NCT Delhi)
• Court in Satender Kumar Antil v. CBI & Anr. (2022) 10
• Insofar as the guidelines issued by the Delhi High Court in Rakesh Kumar v. Vijayanta Arya (DCP) & Ors

This list is machine-assisted from the judgment text and is not a substitute for checking the full citation chain in the PDF.

Ratio and legal principle

The decision turns on Mode of service of notice before arrest. The operative result is classified as Operative order controls. Read the rule only with the statutory version, factual findings and precedent chain recorded in the full judgment.

Why this judgment matters

The case is relevant to taxpayers, advisers and litigators dealing with Mode of service of notice before arrest. Its practical value lies in the interaction between the statutory text, the evidentiary record and the procedural route followed in this case.

Practitioner action points

• Use the judgment as a fact-specific precedent: match the statutory version, assessment period, procedural stage and evidentiary record before relying on the result.
• Check whether a later High Court/Supreme Court order has affirmed, reversed, distinguished or rendered the decision academic.
• For litigation, attach the full judgment/order to the working paper and cite the paragraph/page supporting the proposition rather than relying on a headnote alone.

Full judgment and source trail

Read / download the authenticated official judgment PDF

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