Satender Kumar Antil vs Central Bureau of Investigation & Anr.

Held: Electronic communication is not a valid mode of service of notice u/s.35, since its conscious omission is a clear manifestation of the legislative intent – Introducing a procedure into s.35, that has not been specifically provided for by the Legislature, would be violative of its intent – Legislature, in its wisdom, has specifically excluded the service of a notice u/s.35 from the ambit of procedures permissible through electronic communication, that have been delineated u/s.530 – It cannot be said that a notice u/s.35 falls within the same category as a summons u/s.71, and thus, since the latter allows electronic mode of service, the former must also be permitted to be transmitted electronically – Summons u/s.71 has no immediate bearing on the liberty of an individual in case of its non-compliance – However, a notice u/s.35 could have an immediate bearing on the liberty of the individual in case of its noncompliance – Summons issued by a Court u/ss.63 or 71, and a notice issued by the Investigating Agency u/s.35 travel on different footings and cannot be equated with each other – Summons issued by a Court is a judicial act, whereas a notice issued by the Investigating Agency is an executive act – Thus, the procedure prescribed for a judicial act cannot be read into the procedure prescribed for an executive act – Furthermore, the BNSS, 2023 does not entirely preclude the use of electronic communication by the Investigating Agency – 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 u/ss.94(1) and 193(3) respectively – Code of Criminal Procedure, 1973 – s.41-A. [Paras 27, 38-40, 43] Bharatiya Nagarik Suraksha Sanhita, 2023 – s.35 – When police may arrest without warrant – Interpretation of s.35: Held: s.35 contains an element of substantivity, which becomes evident from the discretion provided to the Investigating Agency – Substantive element is in the nature of a safeguard, especially when the liberty of an individual is involved – Procedure encapsulated in s.35(6), seeks to secure this fundamental right u/Art.21, protection of one’s liberty, from encroachment by the relevant Authority, and thus, any attempt to interpret the provision as a mere procedural one, would amount to rewriting the provision itself – Thus, service of a notice u/s.35 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 – Constitution of India – Art.21. [Paras 24-26]

Bharatiya Nagarik Suraksha Sanhita, 2023 – Interpretation of: Held: While interpreting a statute, the legislative intent is to be gathered from a plain and simple reading of the language employed in the provisions, in a purposive manner, thereby upholding the objective behind the enactment – On a plain reading of the BNSS, 2023, the restrictions imposed by the Legislature on the use of electronic communication, to only certain procedures, precludes the use of electronic communication for any other procedure, for which it has not been specifically permitted by the BNSS, 2023 – This interpretation is countenanced by the objective sought to be achieved by the BNSS, 2023 – Essence of Art. 21 imbues the BNSS, 2023, which reflects the laudable objective of safeguarding the liberty of an individual, while facilitating the investigation into and adjudication of offences – Restrictions on the usage of the mode of electronic communication, have been imposed in order to safeguard the right to life and personal liberty, guaranteed to an individual by the Constitution, from being impinged during the course of criminal investigation and proceedings – Hence, the Legislature has particularly specified the circumstances in which usage of modes of electronic communication is permissible – Constitution of India – Art.21. [Paras 28-30]