Introduction:

In Mr. Yugadev R. v. State of Karnataka & Others, the Karnataka High Court delivered a significant ruling clarifying the scope and procedure of pre-arrest notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which corresponds to Section 41A of the erstwhile Code of Criminal Procedure. The case was heard by a Single Judge Bench of Justice M. Nagaprasanna, who examined whether electronic modes such as WhatsApp or email could substitute the statutory requirement of serving a pre-arrest notice. The petitioner, Yugadev R., who along with his wife was allegedly involved in a financial fraud scheme under the guise of running a yoga-based investment enterprise named “Jai Bhairavi Devi (JBD),” challenged his arrest primarily on the ground that the police had failed to serve him a valid notice under Section 35(3) before taking him into custody. The prosecution alleged that the petitioner and his wife had duped investors of approximately ₹98 lakhs, leading to charges under Sections 66(c) and 66(d) of the Information Technology Act, 2000, and Section 318(4) of the Bharatiya Nyaya Sanhita (BNS). The petitioner was accused of evading the police for over 40 days, during which the authorities attempted to serve him a physical notice. When he was eventually apprehended, he allegedly refused to accept the notice. The matter thus raised critical questions regarding the legality of arrest procedures, the interpretation of statutory provisions concerning notice, and whether technological modes of communication could be read into the statute where not expressly provided.

Arguments:

The case presented a sharp divergence of views between the petitioner and the State on the interpretation of Section 35(3) BNSS and the procedural requirements for a valid pre-arrest notice.

The petitioner, represented by Advocate Syed Khaleel Pasha, primarily argued that the police had failed to comply with the mandatory requirement of serving a pre-arrest notice under Section 35(3) BNSS before arresting him. It was contended that the essence of the provision is to inform the accused of the allegations and provide an opportunity to cooperate with the investigation without being subjected to immediate arrest.

The petitioner submitted that in the modern digital age, communication through electronic means such as WhatsApp, email, or other digital platforms is widely accepted and efficient. He argued that if the intention of the law is merely to inform the accused, then such communication could have been easily effected through electronic means, especially when the police claimed difficulty in locating him physically.

It was further argued that the failure of the police to serve notice electronically, despite having the means to do so, demonstrated a lack of diligence and rendered the subsequent arrest illegal. The petitioner contended that the police cannot take advantage of their own failure to serve notice and use it as a ground to justify arrest.

Additionally, the petitioner challenged the characterization of his conduct as “non-cooperative.” He argued that mere absence or inability to locate him for a period of time does not automatically amount to evasion or deliberate non-cooperation. He asserted that the police had not exhausted all reasonable means of communication before resorting to arrest.

The petitioner also sought to invoke constitutional protections under Article 21, arguing that any deprivation of personal liberty must strictly comply with procedural safeguards established by law. He contended that the arrest, in the absence of proper service of notice, was arbitrary and violative of his fundamental rights.

The State, represented by Additional Special Public Prosecutor B.N. Jagadeesha, strongly opposed the petition and defended the legality of the arrest. It was submitted that the police had made consistent and diligent efforts to serve the petitioner with a physical copy of the pre-arrest notice for over 40 days.

The State emphasized that the petitioner was deliberately evading service of notice and had absconded to avoid the investigation. It was argued that such conduct clearly demonstrated non-cooperation and justified the police in proceeding with the arrest.

A crucial aspect of the State’s argument was the statutory interpretation of Section 35(3) BNSS. The State contended that the provision mandates physical service of notice and does not contemplate electronic modes of communication. It was argued that the legislature, in its wisdom, had consciously excluded electronic communication from the scope of this provision.

The State relied heavily on the Supreme Court’s judgment in Satender Kumar Antil v. CBI, wherein it was held that the legislature had deliberately limited the use of electronic communication to certain procedures and excluded it for others, including pre-arrest notices. The State argued that the Court cannot read into the statute a mode of service that the legislature has consciously omitted.

The prosecution further submitted that the petitioner’s refusal to accept the notice when finally confronted by the police clearly indicated his unwillingness to cooperate. It was argued that such refusal cannot be used as a ground to challenge the legality of the arrest.

The State also pointed out that the arrest was carried out in compliance with all procedural requirements, and the jurisdictional magistrate had duly approved the same after recording the reasons for arrest, including the petitioner’s evasive conduct.

Judgment:

The Karnataka High Court, after carefully considering the submissions of both parties and examining the relevant statutory provisions and precedents, upheld the validity of the arrest and dismissed the petition.

At the outset, the Court addressed the central issue of whether electronic communication could be considered a valid mode of serving notice under Section 35(3) BNSS. Relying on the Supreme Court’s decision in Satender Kumar Antil v. CBI, the Court held that the legislature had consciously chosen not to include electronic modes of communication within the scope of this provision.

The Court observed that statutory interpretation must be guided by the plain language of the provision and the legislative intent. Where the legislature has explicitly provided for certain modes of communication and excluded others, the Court cannot expand the scope of the provision by judicial interpretation.

In this context, the Court categorically held that:

“Section 35(3) does not empower the Police to communicate an electronic copy or by WhatsApp the notice or copy of the FIR. It has to be mandatorily given physically.”

The Court emphasized that the requirement of physical service is not a mere formality but a substantive safeguard intended to ensure that the accused is properly informed and has an opportunity to respond.

Turning to the facts of the case, the Court noted that the police had made sustained efforts to serve the petitioner with a physical notice for over 40 days. The petitioner’s conduct in evading service and refusing to accept the notice when confronted was viewed as clear evidence of non-cooperation.

The Court held that the failure to effect physical service of notice in this case could not be attributed to the police, but rather to the deliberate actions of the petitioner. It observed that an accused cannot take advantage of his own wrongdoing to challenge the legality of the process.

The Court further noted that the reasons for arrest, including the petitioner’s absconding behavior and lack of cooperation, were duly recorded by the police and accepted by the jurisdictional magistrate. This demonstrated compliance with the procedural safeguards governing arrest.

Addressing the petitioner’s argument regarding violation of fundamental rights, the Court held that no constitutional right was infringed, as the arrest was carried out in accordance with law and after following due procedure.

The Court concluded that:

“The police have been searching the petitioner to hand over physical copy of 35(3) notice for 40 days. This would be enough circumstance to take the petitioner into custody for non-cooperative behaviour.”

In light of these findings, the Court dismissed the petition and upheld the arrest, reinforcing the principle that statutory procedures must be strictly followed and cannot be circumvented by invoking technological convenience.