Arrest Warrant Cannot Be Served Via Whatsapp Message: MP State Police Informs High Court

The submission was made before the bench of Justice G.S. Ahluwalia, which was hearing an application for bail.

Facts of the case were that the Applicant was under trial for offences punishable under Sections 302, 34 IPC. He had moved his fifth application for bail on the ground that his trial is being delayed.

Perusing the documents on record, the Court learned that due to non-appearance of a prosecution witness, the trial court had issued his arrest warrant, thereby directing the police to produce him on the next date of hearing. However, on the next date of hearing the witness was not produced. The officer concerned justified the same by stating that the said witness was served notice via WhatsApp message. Finding the justification unacceptable, the lower court had sought for a reply from the officer concerned asking as to why action may not be taken against him under the Police Regulation No.29.

Noting that no reply was filed by the officer concerned as per the instructions of the lower court, the High Court directed the State to bring its reply on record to provide clarifications to the queries raised-

Accordingly, the State counsel prays for and is granted a day's time to file reply of Senior Superintendent of Police, Gwalior as well as file reply of SHO, Police Station Hazira, District Gwalior that how a warrant of arrest can be executed by sending a message on Whatsapp account only and whether the police was under obligation to arrest the witness and to produce the witness before the Trial Court or not ? The SHO, Police Station Hazira, District Gwalior shall also clarify that whether he has filed any reply before the Trial Court or not ?

Through his reply, the Senior Superintendent of Police informed the Court that there is no such procedure to serve arrest warrants under Section 71 CrPC through WhatsApp messages and that action is being taken against the delinquency-

In compliance of order dated 2/11/2022 the SSP, Gwalior has filed his reply and has submitted that as per the provisions of Section 71 of Cr.P.C., SHO, Manish Dhakad and Constable 1664 Kamlesh Chaurasiya should have executed the warrant of arrest and there is no procedure for serving the same by sending it to the concerning person on WhatsApp. Accordingly, a notice has been issued to the above two persons calling upon them to show-cause as to why the departmental action may not be initiated against them.

The Court expressed its shock over the fact that despite clear instructions given by the trial court, the SHO concerned had not submitted his reply as to why action be not taken against him-

It is really shocking that in spite of a clear direction by the Trial Court by order dated 9/9/2022, by which the SHO, Police Station Hazira, District Gwalior was called upon to submit his response as to why an action may not be taken against him under Section 29 of the Police Regulations, still the SHO, Police Station Hazira, District Gwalior did not file any response. So far as the submission that the SHO, Police Station Hazira, District Gwalior had made verbal submissions before the Trial Court is concerned, the same is clearly false because the subsequent order-sheets of the Trial Court do not reflect so. Thus, it is clear that the SHO, Police Station Hazira, District Gwalior was not only negligent in discharging his duties, but also did not respond to the order dated 9/9/2022 of the Trial Court.

Making the abovementioned observations, the Court directed the SHO to file his reply before the trial court. It further directed the trial court to pass an order considering the said reply along with the reply filed by the SSP before the Court. It also directed the SSP to submit a report before the Registrar with regard to the action taken against the delinquent officers.

The Court then directed an enquiry against the prosecution witness for his non-appearance, noting that his actions were in violation of accused's right under Article 21 of the Constitution of India-

In the light of the fact that Dr. H.L. Manjhi has been arrested and has been produced before the Court, no further directions are required in the matter. However, the Disciplinary Authority of Dr. H.L. Manjhi is directed to look into the matter and to take necessary action against Dr. H.L. Manjhi for not responding to the summons / bailable warrants / warrants issued by the Trial Court, because this act on the part of Dr. H.L. Manjhi is in clear violation of Article 21 of the Constitution of India where the trial is getting delayed because of his non-appearance before the Trial Court and the accused is in jail.

Dealing with the merits of the application, the Court observed that the previous bail application of the Applicant was dismissed on merits and the only change in circumstances since then was the delay in trial. Noting that the prosecution witness causing delay had been dealt with, the bail application was sans merit. Accordingly, the application was dismissed.