NEW DELHI: Infusion of information technology in court proceedings notwithstanding, Supreme Court has barred police and law enforcement agencies from sending pre-arrest notices through WhatsApp or other electronic means to people suspected of committing a cognisable offence under Section 41A of CrPC and Section 35 of Bharatiya Nagarik Suraksha Sanhita (BNSS).
Both these provisions mandate a police officer who is investigating a cognisable offence to first issue notice to the suspect seeking his/her appearance. If the suspect appears before the police officer and cooperates in the investigation, s/he will not be arrested. Opposition politicians had made an issue that police misused its power to arrest without issuing Section 41A notices.
Accepting the suggestions of amicus curiae and senior advocate Sidharth Luthra, a bench of Justice M M Sundresh and Rajesh Bindal ordered, “All states/UTs must issue a standing order to their respective police machinery to issue notices under Section 41A of CrPC, 1973/Section 35 of BNSS, 2023, only through the mode of service as prescribed under the CrPC, 1973/BNSS, 2023. “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 recognised and prescribed under the CrPC, 1973/BNSS, 2023.”
Luthra cited earlier SC judgments that had barred police from arresting a person suspected to have committed an offence punishable with imprisonment of less than seven years without first complying with the mandatory process provided under Section 41A of CrPC.
On the issue of many poor undertrial prisoners languishing in jail as they could not furnish bail bond and sureties, the amicus informed the court that National Legal Services Authority (NALSA) has in principle agreed with his suggestion to release such prisoners on depositing their verified Aadhaar cards along with personal bonds.
However, since the modalities for implementation of such a procedure for grant of bail to such prisoners on personal bond along with deposit of Aadhaar card were to be worked out, the bench allowed the amicus to further discuss with NALSA to evolve a procedure in this regard.