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2026 DAILYLAW 9926 (GAU)

Cholingso Kora S/o Torelum Kora v. State of A. P.

2026-03-11

Anjan Moni Kalita

body2026
JUDGMENT : ANJAN MONI KALITA, J. 1. Heard Mr. D. Das, learned Senior counsel assisted by Mr. S. Mow and Mr. I. Das, learned counsel for the petitioner and Mr. G. Tado, learned Addl. Public Prosecutor for the State. 2. This is an application under Section 528 of BNSS , 2023 praying for setting aside and quashing of the purported notice under Section 35 (3) of the sent to the petitioner, vide an Electronic message, vide No. Naharlagun/PS-23/24 dated 22.10.2025 from Officer-in-Charge, Naharlagun Police Station to Officer-in-Charge, Tezu Police Station, requesting to direct the petitioner to appear in Naharlagun Police Station in connection with an enquiry, vide Naharlagun PS GD Entry No.022/25 dated 22.10.2025 on or before 25.10.2025 without fail for the purpose of enquiry. 3. The case of the petitioner is that the petitioner received an Electronic notice dated 22.10.2025 from the respondent No.6 purportedly under Section 35 (3) of BNSS containing WT message No. NLG/PS-23/24 dated 22.10.2025 from Officer-in-Charge, Naharlagun Police Station to Officer-in-Charge Tezu Police Station to appear in Naharlagun Police Station in connection with an enquiry, vide NLG PS GD Entry No. 022/2025 on or before 25.10.2025 without fail for the purpose of enquiry.The aforesaid notice was not physically served to the petitioner by the respondent No. 6 but was served electronically by Whatsapp without any details of any FIR or complaint and therefore, the impugned Electronic notice dated 22.10.2025 under (3) of cannot sustained under the law. However, since the petitioner was not aware of any allegations about him or the contents of any FIR or complaint lodged at Naharlagun Police Station, on 25.10.2025, the petitioner sent his legal counsel to obtain the certified copy of the FIR or Complaint from the Naharlagun Police Station but the Investigating Officer, namely, N. Rama, SI, intimated that he would not be able to provide any information regarding the copy of the FIR/ complaint and he informed the legal counsel to contact the Officer-in- Charge of Naharlagun Police Station. Since the Officer-in-Charge was not available on that day, on the next date, the aforesaid legal counsel went to the Naharlagun Police Station again on 26.10.2025 and when requested the Officer-in-Charge, he denied to supply the copy of the complaint stating that since the case has not been registered, the copy of the complaint cannot be supplied. Since the Officer-in-Charge was not available on that day, on the next date, the aforesaid legal counsel went to the Naharlagun Police Station again on 26.10.2025 and when requested the Officer-in-Charge, he denied to supply the copy of the complaint stating that since the case has not been registered, the copy of the complaint cannot be supplied. The Officer-in-Charge intimated the aforesaid legal counsel that the petitioner can come to Naharlagun Police Station whenever, he is free. 4. Faced with the aforesaid situation, the petitioner without having any option, has filed the instant Criminal Petition to quash the aforesaid notice as the aforesaid notice is not served on him in terms of the settled law and the same is not issued in the right form as prescribed under Section 35 (3) of BNSS . 5. Mr. D. Das, learned Senior Counsel appearing for the petitioner submits that since there is no complaint filed, as yet, as has been intimated by the concerned Officer-in-Charge, a notice under Section 35 (3) of the BNSS could not have been issued to the petitioner. He submits that a notice under (3) can be issued only when a complaint has been made against the person or credible information has been received or reasonable suspicion determines that a person may have committed a cognizable offence. In the instant case, since there is no complaint registered, there is no question of any commission of cognizable offence, as yet and therefore, the notice under (3) is not in the terms of the laid down provisions under of the and hence, the same is not sustainable under the law. He further submits that in the case of Satender Kumar Antil vs. Central Bureau of Investigation and Another , 2025 SCC OnLine SC 1578, the Hon’ble Supreme Court has categorically held that service of notices under through Whatsapp or other modes of electronic communication cannot be considered or recognized as an alternative or substitute to the mode of service recognized and prescribed under , 2023. He further refers to the case of Tavaragi Rajashekhar Shiva Prasad vs. State of Karnataka , 2024 SCC OnLine Kar 67 wherein, it has been specifically held that it becomes mandatory for a notice to be issued under (3) of the to mention the crime number, the offence alleged in the crime so registered and necessarily append to it a copy of the FIR so registered, as any person who receive the notice for what he is being summoned to the Police Station. 6. In view of the ratios laid down in the aforesaid case laws, the learned Senior Counsel submits that in the instant case, since the notice purported to be under Section 35 (3) of the BNSS has been sent to the petitioner in an electronic mode, i.e., Whatsapp, the same is in clear violation of the statutory provision of section 35 (3) of the as well as the ratios laid down by the Hon’ble Supreme Court and the High Court of Karnataka. Therefore, he submits that this is a fit case wherein, this Court should invoke its power and jurisdiction under Section 528 of the to set aside and quash the aforesaid notice. 7. On the other hand, Mr. G. Tado, learned Addl. PP submits that the WT message was sent to the petitioner through the Officer-in-Charge in Tezu Police Station for the purpose of an enquiry relating to borrowing of some money by the petitioner from one Shri Chau Ambika Engling who had filed a written FIR against the petitioner. The status report dated 26.11.2025 sent to the office of the learned Public Prosecutor by the concerned S.I., namely, Niri Rama, the Investigating Officer has been submitted before this Court which reveals that on receipt of the notice, the petitioner has written to the Officer-in-Charge, Tezu Police Station about his inability to appear on the date requested as he was unwell. It is also seen that no second notice has been sent to the petitioner relating to the instant case. However, from the aforesaid status report, it cannot be made out whether an FIR has actually been registered or not as no registration number has been provided in the status report. 8 . It is seen that by an order dated 03.11.2025, a co-ordinate bench of this Court has stayed the aforesaid impugned notice till the next date of listing. 9 . 8 . It is seen that by an order dated 03.11.2025, a co-ordinate bench of this Court has stayed the aforesaid impugned notice till the next date of listing. 9 . Section 35 (3) of BNSS , 2023 being relevant is extracted hereinbelow:- “35(3) - The police officer shall, in all cases where the arrest of a person is not required under sub-section (1) issue a notice directing a person against whom a reasonable complaint has been made, or credible information has been received or reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice." 5. That the petitioner begs to quote herein Form No.1 of the second schedule of BNSS for perusal of the Hon'ble court”. 10. The 2nd Schedule of BNSS , 2023 provides different proforma of various notices, including a notice for appearance by the Police under Section 35 (3) of the . The same being relevant, Form No. 1 is extracted hereinbelow: Form No.1 Notice for appearance by the Police Serial No...... To ……………. (Name of Accused/Noticee) ……………. (Last known address) ……………… (Phone No./ Email ID(if any) In pursuance of sub-section (3) of section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, I hereby A OF inform you that during the investigation of FIR/Case No…….. dated………..u/s……. registered at Police station, it is revealed that there are reasonable grounds to question you to ascertain facts and circumstances from you, in relation to the present investigation. Hence you are directed to appear before me at................ AM/PM on at……. Police Station Name and designation of the officer in charge (Seal) 11. From the perusal of the aforesaid section and in consideration of the proforma (Form No.1), it is apparent that there was no compliance by the Police while sending the impugned notice in the instant case. Section 35 provides for provision when a Police may arrest a person without a warrant. From the perusal of the aforesaid section and in consideration of the proforma (Form No.1), it is apparent that there was no compliance by the Police while sending the impugned notice in the instant case. Section 35 provides for provision when a Police may arrest a person without a warrant. While doing so, under Sub-Section 1 (b), the pre-conditions are (i) against whom a reasonable complaint has been made; (ii) or credible information has been received; (iii) or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the conditions prescribed under Section b are satisfied. Therefore, section 35 (3) specifically provides that in all cases where the arrest person is not required under Sub-section 1, the Police officer shall issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exist that he has committed a cognizable offence, to appear before him as may be specified in the notice. 12. In the instant case in hand, though, it is stated that there is a complaint filed but the same was not registered as stated by the concerned Officer-in-Charge. Therefore, in absence of registration of any complaint or FIR, a notice under Section 35 (3) could not have been issued as the Form No.1 itself provides that information regarding FIR / case number with date and sections and Police Station are required to be provided in the notice under (3) of the BNSS . In the instant case, the notice which has been sent through Whatsapp does not indicate anything about any FIR or complaint rather only mentions about one GD Entry, vide Naharlagun GD Entry No.022/2025 dated 22.10.2025. 13. In the case of Satender Kumar Antil (supra) , the Hon’ble Supreme Court has specifically stated that a notice under Section 35 , the Investigating Agency is mandated to issue a written notice directing the person to appear before him or as may be specified in the notice. 13. In the case of Satender Kumar Antil (supra) , the Hon’ble Supreme Court has specifically stated that a notice under Section 35 , the Investigating Agency is mandated to issue a written notice directing the person to appear before him or as may be specified in the notice. It is also seen that the Hon’ble Supreme Court has negated an argument that since summon under Section 71 of BNSS , 2023 is allowed to be served by electronic mode of service, a notice under of the should also be permitted to be transmitted electronically. The Hon’ble Supreme Court observed that a summon under of the has no immediate bearing on the liberty of an individual in case of its non appearance. However, a notice under of the , 2023 could have an immediate bearing on the liberty of the individual in case of its non appearance, as laid down under (6) of the ,2023. In the same case, the Hon’ble Supreme Court in Paragraph No.3 has clearly held that service of notice through Whatsapp or other modes of electronic communication cannot be considered or recognized as an alternative or substitute to the mode of service recognized and prescribed under the in case of notice under (3) of the . 14. Taking into account the submissions made by the learned counsel for the respective parties as well as after perusal of the case laws, this Court is of the considered opinion that the notice purported to have been sent under Section 35 (3) has not been sent to the petitioner in terms of nd of the BNSS reading with Form No. 1 of 2 schedule of the . It is also an admitted fact in the instant case that no written notice was sent to the petitioner rather a notice was sent to the petitioner by Whatsapp message without having any details of the complaint/FIR, Registration number and Sections under which the FIR/complaint has been registered as no copy of the FIR has been appended to the notice. Therefore, this Court is without any doubt that there is a clear violation of statutory provisions as well as settled law as held in the case of Satender Kumar Antil (supra). 15. Therefore, this Court is without any doubt that there is a clear violation of statutory provisions as well as settled law as held in the case of Satender Kumar Antil (supra). 15. In view of the aforesaid, the instant Criminal Petition is allowed by setting aside the impugned notice under Section 35 (3), vide WT message, vide NLG PS GD ENTRY No. 022/2025 dated 22.10.2025 to the petitioner. 16 . In the aforesaid terms, the instant petitions stands disposed of.