TaxTMI 
TaxTMI 
2025 (7) TMI 1945
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.... Adv., Mr. Rajesh Singh Chauhan, Adv., Mr. Shreekant Neelappa Terdal, AOR, Mr. Anupam Raina, AOR, Mr. R N Pareek, Adv., Mr. Ankur Parihar, Adv., Mr. Anando Mukherjee, AOR, Mr. Shwetank Singh, Adv., Mr. Mahesh Agarwal, Adv., Mr. Ankur Saigal, Adv., Mr. Anshuman Srivastava, Adv., Mr. Shashwat Singh, Adv., Mr. E. C. Agrawala, AOR, Mr. Pukhrambam Ramesh Kumar, AOR, Mr. Karun Sharma, Adv., Ms. Anupama Ngangom, Adv., Ms. Rajkumari Divyasana, Adv., Mr. Sudarshan Singh Rawat, AOR, Ms. Saakshi Singh Rawat, Adv., Mr. Lokesh Sinhal, Sr. A.A.G., Mr. Akshay Amritanshu, AOR, Mr. Nikunj Gupta, Adv., Ms. Drishti Rawal, Adv., Ms. Drishti Saraf, Adv., Ms. Aakanksha, Adv., Ms. Ishika Gupta, Adv., Ms. Sarthak Arya, Adv., Mr. Nikhil Jain, AOR, Ms. Divya Jain, Adv., Mr. Amit Gupta, AOR, Ms. Muskan Nagpal, Adv., Mr. Kshitij Vaibhav, Adv., Ms. Swati Ghildiyal, AOR, Ms. Deepanwita Priyanka, Adv., Ms. Neha Singh, Adv., Mr. Rishi Yadav, Adv., Mr. Arjun Garg, AOR, Ms. Kriti Gupta, Adv., Ms. Sagun Srivastava, Adv., Mr. Saaransh Shukla, Adv., Ms. Garima Prasad, Sr Adv, A.A.G., Mr. Shaurya Sahay, AOR, Mr. Aditya Kumar, Adv., Ms. Ruchil Raj, Adv., Mr. Karan Sharma, AOR, Mr. Chetan Manchanda, Adv., Mr. Guntur Pram....
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.... Adv., Mr. Mudit Gupta, AOR, Mr. Somesh Chandra Jha, AOR, M/S. Arputham Aruna And Co, AOR, Ms. K. Enatoli Sema, AOR, Mr. Amit Kumar Singh, Adv., Ms. Chubalemla Chang, Adv., Mr. Prang Newmai, Adv., Mr. Sarthak Raizada Ga, Adv., Mr. Sarad Kumar Singhania, AOR, Mr. Ashish Batra, AOR, Mr. Ankur Prakash, AOR, Mr. Anjuman Tripathy, AOR, Mr. Ardhendu Pratap Swain, Adv., Ms. Rooh-e-hina Dua, AOR, Mr. Shrirang B. Varma, Adv., Mr. Siddharth Dharmadhikari, Adv., Mr. Aaditya Aniruddha Pande, AOR, Mr. Shuvodeep Roy, AOR, Mr. Deepayan Dutta, Adv., Mr. Saurabh Tripathi, Adv., Ms. Enakshi Mukhopadhyay Siddhanta, AOR, Mr. Ravi Kumar S., Adv., Mr. R. Murugaiyan, Adv., Mr. Shashwat Jaiswal, Adv., Mr. Sanchit Garga, Adv., Mr. Rahul Gupta, AOR, Mr. Varinder Kumar Sharma, AOR, Ms. Manisha Ambwani, AOR, Mr. Sunny Choudhary, AOR, Mr. Maibam Nabaghanashyam Singh, AOR, Ms. Astha Sharma, AOR, Mr. Abhishek Singh, AOR, Mr. Sabarish Subramanian, AOR, Mr. Malak Manish Bhatt, AOR, Mr. Arvind Kumar Sharma, AOR, Mr. Aditya Jain, AOR, Mr. Aravindh S., AOR, Mr. Somanadri Goud Katam, AOR, Mr. Sirajuddin, Adv., Mr. Abhimanyu Tewari, AOR, Mr. P. I. Jose, AOR, Mr. Pradeep Misra, AOR, Mr. Pai Amit, AOR, Ms. Vishakha, AOR,....
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....S, 2023 statutorily recognizes electronic mode of service of summons issued by the Court, then the notice issued under Section 35 of the BNSS, 2023 should also be permitted to be served through the electronic mode. 7. Placing reliance upon Section 71 of the BNSS, 2023, it is submitted that sub-section (1) provides for service of summons to witnesses through the mode of electronic communication. Even if one were to contend that proviso to Section 64(2) of the BNSS, 2023 permits service of summons via the mode of electronic communication only in those cases where the summons bear the image of a Court's seal, Section 71 of the BNSS, 2023 is an overriding provision as there is no requirement of the Court's seal therein. 8. A careful reading of Section 64(2) and Section 71 of the BNSS, 2023 would indicate that the former relates to system-generated summons, i.e., the e- Summons App, hence the requirement of the Court's seal to make them look authentic, whereas, the latter relates to physical summons duly signed, scanned and transmitted electronically, because of which there is no separate requirement of any watermark seal. A notice under Section 35 of the BNSS, 2023 fa....
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....inquiries and proceedings under the BNSS, 2023 may be held in electronic mode, by use of electronic communication or use of audio-video electronic means. The legislature, in its wisdom, has excluded investigations from the scope of the aforesaid section, thereby meaning that the same have been consciously omitted from the purview of the procedures which are permissible through electronic means. Hence, the aforesaid section clearly does not permit service of notice under Section 35 of the BNSS, 2023 through WhatsApp or other modes of electronic communication. 14. Finally, it is submitted that since a notice under Section 35 of the BNSS, 2023 is issued by the Investigating Agency, and the breach thereof leads to arrest and deprivation of the liberty of an individual, it is appropriate that such a notice be served in person on the accused, and not through the mode of electronic communication. DISCUSSION 15. The Legislature, envisaging the extensive reliance on modern means of communication in the present times, has recognised the mode of electronic communication within the ambit of the BNSS, 2023. Section 2 of the BNSS, 2023 "2. Definitions *** ....
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.... When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) who commits, in the presence of a police officer, a cognizable offence; or (b) against whom a reasonable complaint has been made, or credible information has been received, 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 following conditions are satisfied, namely:- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise....
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....without a warrant by the officer who issued the requisition. (2) Subject to the provisions of Section 39, no person concerned in a noncognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. (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 the person against whom a reasonable complaint has been made, or credible information has been received, or a 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. (4) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (5) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (6) Where such pers....
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....ion that the arrest of the concerned person is necessary for the purpose of investigation. In other words, failure to comply with the notice does not lead to automatic arrest. Rather, it is the last resort available to the Investigating Agency, after due exercise of discretion regarding the necessity of arrest. 24. Therefore, the abovementioned provision contains an element of substantivity, which becomes evident from the discretion provided to the Investigating Agency. The substantive element is in the nature of a safeguard, especially when the liberty of an individual is involved. 25. The protection of one's liberty is a crucial aspect of the right to life guaranteed to each and every individual, under Article 21 of the Constitution of India, 1950 (hereinafter referred to as the 'Constitution'). The procedure encapsulated in Section 35(6) of the BNSS, 2023, seeks to secure this fundamental right, from encroachment by the relevant Authority, and therefore, any attempt to interpret the provision as a mere procedural one, would amount to rewriting the provision itself. 26. Thus, service of a notice under Section 35 of the BNSS, 2023 needs to be carried out in a manner that ....
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....NSS, 2023 "Section 2. Definitions- *** (k) "inquiry" means every inquiry, other than a trial, conducted under this Sanhita by a Magistrate or Court; (l) "investigation" includes all the proceedings under this Sanhita for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. (m) "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath;" (emphasis supplied) It is to be noted that the purpose of an investigation by an Investigating Agency, is markedly distinct from that of an inquiry or judicial proceedings by the Court. While the former is to investigate an offence, the latter is a search towards the truthful determination of an occurrence. Therefore, the procedure of one cannot be read into the other. Section 63 of the BNSS, 2023 "63. Form of summons.-Every summons issued by a Court under this Sanhita shall be,- (i) in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule....
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....Summons App, hence the requirement of the Court's seal to make them look authentic, falls to the ground because, irrespective of the summons being issued under Section 63(i) or Section 63(ii) of the BNSS, 2023, it shall necessarily bear the seal of the Court, or the image of the seal of the Court, when the summons is being served. Section 71 of the BNSS, 2023 "71. Service of summons on witness.-(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by electronic communication or by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain. (2) When an acknowledgement purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received or on the proof of delivery of summons under sub-section (3) of Section 70 by electronic communication to the satisfaction of the Court, the Court issuing summons ma....
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....any investigation, inquiry, trial or other proceeding under this Sanhita by or before such Court or officer, such Court may issue a summons or such officer may, by a written order, either in physical form or in electronic form, require the person in whose possession or power such document or thing is believed to be, to attend and produce it, or to produce it, at the time and place stated in the summons or order." Section 193(3) of the BNSS, 2023 "193. Report of a Police Officer on the completion of investigation- *** (3)(i) As soon as the investigation is completed, the officer in charge of the police station shall forward, including through electronic communication to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form as the State Government may, by rules provide, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (....