Can WhatsApp text land you in jail? Rajasthan High Court convicts top cop for ‘Illegal’ arrest without proper notice

The next hearing of the matter has now been scheduled for sentencing on April 6 with the court directing the guilty officer to remain personally present.

Court declares WhatsApp notice invalid

At the heart of the case was a notice dated January 25, 2023, sent to the petitioner via WhatsApp by an investigating officer of the anti-corruption bureau (ACB), directing him to appear for questioning.

The court said that when statutory protections such as those embodied in Sections 41-A of CrPC are provided to regulate the exercise of arrest powers, the investigating agency is duty-bound to observe them scrupulously and any deviation from the same strikes at the very foundation of the constitutional guarantee of liberty.

Section 41A of the Code of Criminal Procedure (CrPC) mandates that police issue a notice of appearance to a person suspected of a cognisable offence rather than making an immediate arrest, provided the offense carries a sentence of less than seven years.

It protects individuals from unnecessary arrest, provided they comply with the notice and cooperate with the investigation.

The court emphasised that statutory procedures for service of notice such as personal delivery, affixation, or recognised postal modes, cannot be substituted by informal electronic communication.

Contempt of court established

Holding the investigating officer accountable, the high court concluded that the arrest violated both statutory safeguards and binding Supreme Court directions.

The action of Rathod amounts to a violation of the binding directions issued by the Supreme Court and attracts the jurisdiction of this court for contempt, the court said.

The court ultimately found Additional Superintendent of Police Pushpendra Singh Rathod guilty of contempt for wilful disobedience of judicial directions.

“Accordingly, this court is satisfied that respondent number 1, Pushpendra Singh Rathod, has committed contempt by violating the Principles laid down in the case of Arnesh Kumar and breached the personal liberty of the petitioner without adhering to the principles laid down in the aforesaid case,” said the court.

Kerala High Court on WhatsApp notice

Last month, the Kerala High Court had denied bail to a man accused under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, observing that the grounds of arrest were intimated to him through a WhatsApp message and there was substantial compliance.

Grounds of arrest are shared under Article 22(1) of the Indian Constitution, which mandates informing the arrestee of the reasons for their detention.

Procedurally, this is enforced through Section 50 of the Code of Criminal Procedure (CrPC) or Section 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), requiring the police to communicate these grounds immediately.

In the present case, a notice was sent to the petitioner under Section 41-A of CrPC via WhatsApp by an investigating officer of the Anti-Corruption Bureau (ACB), directing him to appear for questioning.

Section 41A of the Code of Criminal Procedure (CrPC) mandates that police issue a notice of appearance to a person suspected of a cognisable offence rather than making an immediate arrest, provided the offense carries a sentence of less than seven years.

Arrest despite request for time

According to the case record, the petitioner was arrested on February 1, 2023, in connection with an FIR registered on September 14, 2021, under provisions of the Prevention of Corruption Act 1988 and the IPC.

Pushpendra Singh Rathod, Additional Superintendent Of Police, Special Unit Second, Anti Corruption Bureau, Jaipur, Rajasthan along with two others from the department including one constable and one head constable were impleaded as respondents in the matter.

The petitioner had responded to the WhatsApp notice on January 30, 2023, seeking time to appear, citing his wife’s illness.

However, the investigating agency neither responded nor issued a fresh notice through legally recognised means before proceeding with the arrest.

The high court noted that no effort was made to serve notice in accordance with law, even though such compliance is mandatory before arrest in cases where immediate custody is not required.

Violation of Supreme Court guidelines

The court relied heavily on the Supreme Court’s landmark rulings in Arnesh Kumar v. State of Bihar (2014) and Satender Kumar Antil v. CBI (2022), which mandate strict adherence to Section 41-A CrPC to prevent arbitrary arrests.

Citing these precedents, the bench observed that notices must be served through legally prescribed modes.

The court said that the arrest should not be made mechanically and the police officers must record reasons justifying arrest.

The high court further noted that even Supreme Court directions explicitly clarify that WhatsApp or electronic service cannot substitute statutory modes of service.

The court said that the arrest of the petitioner without ensuring proper compliance with the mandate of Section 41-A of CrPC and the directions issued by the apex court clearly reflects a breach of the prescribed procedure.

The action of the officer therefore, amounts to violation of the binding directions issued by the Supreme Court and attracts the jurisdiction of this court for contempt.

Failure of due process by investigating agency

The judgment stated that no valid notice under Section 41-A was served between registration of FIR (September 2021) and January 2023.

The court said that the only communication was via WhatsApp and no follow-up attempt was made through recognised legal methods.

The court also pointed out that even if the accused was unavailable at home, the investigating officer could have resorted to alternative lawful methods such as affixation or postal service but failed to do so.