Police can no longer serve notices through WhatsApp or email

The issue gained prominence when a team of the Tamil Nadu Police, probing the leak of an FIR related to a sexual assault case, served summons to journalists via WhatsApp.
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The practice of serving summons and notices through WhatsApp and email, though not explicitly provided for under the Criminal Procedure Code (CrPC), 1973, or the newly-enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, has triggered fresh debate on the use of social media platforms in legal procedures.

The issue gained prominence when a special investigation team of the Tamil Nadu Police, which was probing the leak of an FIR related to a sexual assault case, served summons to journalists via WhatsApp. Sources indicate that law enforcement agencies have been regularly using WhatsApp for serving summons, particularly in cases involving domestic violence, matrimonial disputes, and financial fraud.

A senior police officer, speaking on the condition of anonymity, justified the practice, citing a High Court ruling that permitted serving summons or notices electronically. “Although we primarily deliver notices in person, in cases where the recipient is in another State or country, we resort to WhatsApp or email,” he said. However, once an individual appears in response to the digital notice, they are required to provide a signature acknowledging its receipt.

Another officer defended the practice by pointing out the efficiency of electronic communication. “People frequently send complaints and petitions via email, SMS, or WhatsApp. If they can initiate communication electronically, why shouldn’t we send summons the same way? It saves time and manpower,” he said.

Despite the convenience, legal experts have raised concern over the legitimacy and reliability of WhatsApp notices. N. Vijayaraj, a former Special Public Prosecutor, emphasised the need for personal service of summons. “For example, I have multiple phone numbers registered on WhatsApp. A notice could be sent to any one of them, and I might not see it if I have lost my phone or if it is not working. Additionally, some recipients may be illiterate or unaware of the summons,” he said. He suggested modifying the law to recognise electronic modes of service only if the recipient explicitly acknowledges and responds to the notice.

Human rights activists have also expressed apprehension over the misuse of digital notices. V. Suresh, general secretary of the People’s Union for Civil Liberties (PUCL), warned that the police could claim they sent a notice via WhatsApp and cite a blue tick as proof of receipt, potentially leading to wrongful arrests. “We have long opposed this practice as it opens doors for manipulation,” he said.

The Supreme Court recently weighed in on the matter, ruling that the police cannot serve notices under Section 41A of the CrPC or Section 35 of the BNSS via WhatsApp or other electronic modes. It directed all States and Union Territories to issue standing orders instructing the police departments to serve notices only through legally prescribed methods.

“It is made amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternative or substitute to the mode of service prescribed under the CrPC/BNSS,” the Supreme Court ruled, effectively putting an end to the contentious practice.

With the court’s directive, police departments across the country now need to revise their procedures to align with legal mandates, ensuring that due process is followed in serving legal notices.