Section 35 BNSS Notice: Mandatory Personal Service and Supreme Court Guidelines

1. What Section 35 BNSS Requires

Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, Section 35 governs arrests for offences punishable with imprisonment up to 7 years.

Rather than immediate arrest, the police must issue a written notice of attendance to appear before the investigative agency. Arrest can only follow if the accused fails to attend without valid reason .

2. Supreme Court’s Ruling: No WhatsApp or Electronic Service

In Satender Kumar Antil v. CBI, the Supreme Court reaffirmed that service of notice under Section 35 must be physical, rejecting WhatsApp, email, or any electronic mode as valid .

The Court dismissed Haryana’s attempt to allow e-service, citing clear legislative intent: since BNSS omitted electronic service in Section 35, its inclusion through judicial interpretation would overstep the law .

3. Why Personal Service Is Essential

The Court emphasized Article 21 (right to life and liberty). Notices whose non-compliance may lead to arrest must ensure actual delivery.

Electronic delivery lacks legal verifiability—blue ticks don’t prove receipt or comprehension; WhatsApp profiles can be spoofed; rural recipients may lack phones .

The law explicitly allows electronic procedures only for trials/inquiries—not investigations—seen in Sections like 530 BNSS. Section 35, by contrast, demands traditional modes .

A judicial summons (e.g., under Sections 63/64/71 BNSS) is a judicial act; a Section 35 notice is an executive act. The Court held these belong to different legal regimes with different requirements .

4. Precedents Reinforced

This ruling builds upon earlier foundation stones:

Rakesh Kumar v. Vijayanta Arya (Delhi HC, 2021) and Amandeep Singh Johar v. State (NCT Delhi) (2018) — both insisted on personal service of Section 41A CrPC notices .

The Supreme Court in Satender Kumar Antil (2022) affirmed these guidelines across India .

5. Implications for Police, Courts, and the Public

For Police: Must issue physical notices personally or through recognized legal modes with proof (like acknowledgment). Standing Orders must reflect this; monthly audits may be required to ensure compliance .

For Courts: Will scrutinize arrests for absence of valid service and may quash arrests based on such defects.

For Legislators: If e-service is to be introduced, it must be through clear legislative amendment, not judicial reading.

For Citizens: Know your rights—refuse to comply with notices unless they’re issued physically and properly served.