Page No.# 1/5 GAHC040015832026 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Petn./306/2026 Pritanu Chakraborty Son of Pranab Kumar Chakraborty, resident of 5 No. Patta, Harmoti, PO Merbil, PS Laluk, Lakhimpur District, Assam 784160 VERSUS The State of AP and Anr represented by the PP of AP 2:Loksar Esso Age: 0 Occupation : proprietor of M/s Esso Enterprise Son of Late Hamluk Esso present address Daporijo Upper Subansiri District PS Daporijo Arunachal Prades Advocate for the Petitioner : 1 N J Das, Nazme Muhtarin Advocate for the Respondent : P P of AP, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 21.09.2026 Heard Mr. N. J. Das, learned counsel for the petitioner. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State. Page No.# 2/5 2. The instant application has been filed under Section 528 read with Section 438 of the BNSS, 2023 praying for quashing of the order dated 26.08.2026 issuing a Non-Bailable Warrant of Arrest by the court of Judicial Magistrate First Class, Yupia, Papum Pare District in connection with Naharlagun P.S. Case No.25/2026 under Section 336(2)/341(2)/318(3)/3(5) of BNS, 2023. 3. The gist of the case is that an FIR was lodged on 27.02.2026 by one Loksar Esso, proprietor of M/s Esso Enterprise before the Officer-In- Charge Naharlagun police station alleging inter alia that the petitioner, namely, Pritanu Chakraborty, proprietor of M/s Chakraborty and Chakraborty Enterprise introduced himself as a consultant; that after discussion between a two persons, the petitioner has been appointed as a consultant for executing works relating to project ‘Arunank’ in Arunachal Pradesh in respect of construction of 4 Nos. of major permanent bridges with steel upper structures; that accordingly, the complainant had made payment to the tune of Rs.31,05,000/-(Rupees Thirty-One Lakhs Five Thousand only); that the petitioner did not execute even 1% of the work, and cheated and misappropriated the amount paid to him; that the petitioner had been asking the complainant for money for purchasing steel rod. 4. In terms of the aforesaid FIR, the police registered Naharlagun P.S. Case No.25/2026 under Section 336(2)/341(2)/318(3)/3(5) of BNS, 2023. 5. It is stated that after registration of the case, the Investigating Officer visited the place of residence of the petitioner and in his absence, not Page No.# 3/5 finding the petitioner at his residence, Investigating Officer served the notice under Section 35(3) of BNSS via registered E-mail ID of the petitioner. However, the petitioner did not comply with the notice for appearance as the said was not issued in terms of the settled law. However, subsequently, a prayer was made by the Investigating Officer of the Naharlagun police station to the learned Judicial Magistrate First Class, Yupia on 22.08.2026 for issuance of Non-Bailable Warrant of Arrest against the petitioner since the petitioner has not appeared in terms of the notice under Section 35(3), issued to him on 30.06.2026. The learned Judicial Magistrate First Class, Yupia, in consideration of the prayer of the Investigating Officer, on 26.08.2026 has passed the impugned order whereby, NBWA was issued against the petitioner. The petitioner being aggrieved with the issuance of the NBWA has approached this Court by filing the instant criminal petition. 6. The learned counsel for the petitioner submits that the notice under Section 35(3) of the BNSS, 2023 has not been issued in terms of the laid down law by Hon’ble Supreme Court. He has referred to the case of Satender Kumar Antil Vs. Central Bureau of Investigation and Anr., reported in 2025 SCC Online SC 1578. He submits that aforesaid order passed by the learned Judicial Magistrate First Class, Yupia, is bad in law and same should be set aside. 7. Mr. T. Ete, learned Additional Public Prosecutor has fairly submitted that the issue relating to issuance of notice under Section 35(3) of the BNSS has been duly settled by the Hon’ble Supreme Court in the case of Satender Kumar (supra), therefore, he submits that the issuance of Page No.# 4/5 notice in the instant case is not in terms of the law laid down by the Hon’ble Supreme Court. And accordingly, the order passed on 26.08.2026 by the learned Judicial Magistrate First Class, Yupia is also not in terms of the law laid down by the Hon’ble Supreme Court. 8. The mode of service of notice under Section 35 has been settled by the Hon’ble Supreme Court in the case of Satender Kumar (supra) as has been submitted by both the learned counsel for the petitioner and the learned Additional Public Prosecutor. The Hon’ble Supreme Court in the aforesaid case has made it amply clear that service of notice through WhatsApp or other electronic modes cannot be considered or recognised as an alternate or substitute to the mode of service recognised and prescribed under the Cr.P.C., 1973/BNSS, 2023. The Hon’ble Supreme Court has specifically laid down that the notice under Section 35 of the BNSS, 2023 cannot be issued under any electronic mode. However, in the instant, the notice has been issued through the E-mail, which is also an electronic mode. Therefore, the same makes the issuance of the notice under Section 35(3) of the BNSS, 2023 to the petitioner, not in terms of the law laid down by the Hon’ble Supreme Court. Accordingly, the order issued by the learned Judicial Magistrate First Class, Yupia holding that the notice has been duly served upon the petitioner is apparently not correct. The learned Judicial Magistrate First Class, Yupia has passed the order only on the basis of the prayer made by the I.O. in the instant case wherein, I.O. has stated that he has issued the notice via E-mail as he could not find the petitioner in his residence, when he visited his residence. However, it is not the case of the I.O that the notice has been served physically upon the petitioner. Page No.# 5/5 9. In consideration of the aforesaid and having found that the notice under Section 35(3) BNSS has not been served upon the petitioner personally, with a physical copy of the same, and the notice has, in fact, been issued by way of an E-mail ID, the order passed by the learned Judicial Magistrate First Class, Yupia cannot be sustained in the instant case. 10. In view of the aforesaid conclusion arrived at by this Court, this Court is of the opinion that the NBWA issued to the petitioner, vide order dated 26.08.2026 by the learned Judicial Magistrate First Class, Yupia cannot be sustained and is liable to be set aside. Accordingly, the same is set aside and quashed. 11. Needless that say that the prosecution is at liberty to follow the procedure for service of notice and do the needful accordingly. 12. In terms of the aforesaid finding, the instant criminal petition is disposed of. JUDGE Comparing Assistant Digitally signed by TAGE BUNYI Date: 2026.09.21 18:21:10 +05'30'