Mohan Gowda Vs State of Karnataka and Another (Karnataka High Court)
A Notice Served After Taking a Person into Custody Is No Safeguard: Karnataka High Court Calls for Statewide Police Instructions
A Section 35(3) notice must come before the police curtail a person’s liberty. It cannot be handed over after the person has already been brought under police control. That is the central message of the Karnataka High Court’s order in Sri Mohan Gowda v. State of Karnataka, W.P. No. 25680/2026, dated 29 August 2026. Acting on the Court’s directions, the Karnataka Director General and Inspector General of Police issued a circular on 14 September 2026 requiring police stations across the State to comply with the safeguards governing notice and arrest under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
The case arose from a Facebook post concerning the cancellation of a proposed comedy show at Whitefield. The petitioner described the cancellation as a victory for Hindu unity. A Whitefield Police Constable treated the post as a possible source of communal disharmony, and Crime No. 573/2026 was registered against the petitioner under Sections 217 and 353(2) of the Bharatiya Nyaya Sanhita, 2023.
The petitioner alleged that police personnel travelled from Bengaluru to Udupi, took him to Bengaluru and served him with a notice under Section 35(3) of the BNSS only when he was close to the Whitefield Police Station. The police suggested that he had travelled voluntarily in his own car. The High Court found that explanation, at this stage, unpersuasive. The relevant question was whether he was free to decline the journey and walk away. Travelling in one’s own vehicle does not, by itself, make a journey voluntary when police personnel accompany and control the person throughout.
The timing of the notice was equally troubling. A notice requiring a person to appear before the police on a later date cannot justify bringing him to the station before that date. The Court observed that a Section 35(3) notice cannot be reduced to a formality performed after liberty has already been curtailed. Procedure must precede coercion; it cannot be created afterwards to justify it.
The Court drew upon the Supreme Court’s decisions concerning Section 35 of the BNSS, including Satender Kumar Antil v. Central Bureau of Investigation. For offences punishable with imprisonment of up to seven years, issuing a notice is ordinarily the course to follow. An arrest requires the officer to examine whether custody is genuinely necessary and to record the reasons required by law. Even non-compliance with a notice does not make arrest automatic. Where a person complies and continues to comply, a subsequent arrest requires specific recorded reasons establishing its necessity.
The High Court also referred to Nalla Balu v. State of Telangana while examining the registration of cases arising from social-media posts. It expressed concern that, in the present matter, no person claiming injury from the post had come forward: the police constable had himself perceived the alleged offence and set the machinery in motion. Allegations based on speech demand careful examination of the statutory ingredients. The mere possibility that a post may cause disagreement cannot substitute for material showing the offence alleged.
The Court’s concern extended beyond this particular incident. Noting that complaints concerning the conduct of officers at the Whitefield Police Station had come before the Court on earlier occasions, it directed the State police leadership to issue instructions binding police stations throughout Karnataka. It made clear that wilful, deliberate or reckless violations could lead to departmental proceedings and, where the facts warrant, personal costs imposed on the officers concerned. The Court continued its interim stay of further investigation against the petitioner and listed the matter for further hearing. It did not finally decide whether the FIR should be quashed.
The DGP’s circular of 14 September 2026 gives operational effect to these directions. It requires officers to preserve in the case diary the material supporting a decision to arrest or refrain from arrest, the grounds of necessity, the Section 35(3) notice, proof of its service, the person’s compliance and any later material relied upon. SHOs and investigating officers are made personally responsible, while supervisory officers must review compliance. Allegations of compelled movement, unrecorded custody, a notice issued after custody, or mechanical arrest must be checked against records such as CCTV footage, station diaries and vehicle movement details. Costs imposed personally on an officer cannot ordinarily be passed on to Government funds.
The attachment also contains a separate Karnataka police circular addressing FIRs arising from social-media posts. It directs officers to examine such complaints carefully, obtain legal scrutiny in sensitive speech cases, avoid mechanical arrests and record the basis for their decisions. These instructions should be read with the statutory requirements applicable to the particular offence; they are not a blanket immunity for social-media posts.
The practical value of this order lies in its insistence on the sequence of events. A notice may look proper on paper, yet offer no protection if police have already compelled the person to accompany them. In a disputed case, the time of service, travel records, CCTV footage and station diary may therefore matter as much as the wording of the notice. At the same time, the order preserves the power to investigate and to arrest where the law genuinely permits it. The safeguard is that police must establish necessity through recorded reasons before exercising coercive power, rather than attempting to explain it afterwards.
Cases Discussed / Relied Upon
1. Satender Kumar Antil v. Central Bureau of Investigation and Another — 2026 SCC OnLine SC 162 — Supreme Court decision concerning Section 35 of the BNSS, including notice, necessity of arrest and recorded reasons.
2. Nalla Balu v. State of Telangana — 2025 SCC OnLine TS 855 — Telangana High Court decision laying down safeguards concerning criminal cases arising from speech and social-media posts.
3. State of Telangana v. Nalla Balu — Special Leave Petition (Criminal) Diary No(s). 37178/2025, disposed of on 02/02/2026 — Supreme Court declined to interfere with the directions issued by the Telangana High Court.
4. Joginder Kumar v. State of U.P. — (1994) 4 SCC 260 — referred to on the distinction between the existence of the power to arrest and justification for exercising that power.
Alternative SEO Titles
1. Section 35(3) BNSS Notice Must Precede Police Coercion: Karnataka HC
2. Police Cannot Issue Section 35(3) Notice After Curtailing Liberty: Karnataka HC
3. Procedure Must Precede Coercion Under Section 35 BNSS: Karnataka HC
4. Section 35(3) Notice Cannot Become Post-Custody Formality: Karnataka HC
5. Police Must Record Necessity Before Exercising Arrest Powers: Karnataka HC
FULL TEXT OF THE JUDGMENT/ORDER OF KARNATAKA HIGH COURT
1. Heard Sri Girish Bharadwaj, learned counsel for the petitioner and Sri B.N.Jagadeesha, learned State Public Prosecutor – 1 for the respondents.
2. The petitioner is before the Court calling in question registration of a crime in Crime No.573/2026, for the offences punishable under Sections 217 and 353(2) of the BNS, 2023.
3. Owing to the submissions of the learned counsel appearing for the petitioner, Sri Girish Bharadwaj, this Court on 28.08.2026, had passed the following order:
“Heard the learned counsel Sri.Girish Bharadwaj appearing for the petitioner.
The petitioner is before the Court calling in question the registration of a crime in Crime No.573/2026 for offences punishable under Sections 217 and 353(2) of the BNS, 2023.
The crux lies in a representation by an Organization called Hindu Rashtra Samanvaya Samithi. The representation was to the jurisdictional Whitefield Police Station. The representation was that one Kunal Kamra was wanting to hold his comedy show at Uru, Whitefield. On the representation of the petitioner, it transpires that the show gets cancelled. The petitioner on his facebook post holds that the show is cancelled and it is a victory for Hindu unity. This becomes the fulcrum of the allegation, not by anybody but on suo motu by the Whitefield Police Station.
The police constable of the Whitefield Police Station gets concerned about the imaginary disharmony overnight and alleges such disharmony to be because of the post of the petitioner calling it a victory for Hindu unity.
After the cancellation of the show, it transpires that the message comes to the petitioner, which the petitioner is said to have posted on his facebook page. This becomes a notice under Section 173(2) against the petitioner issued on 04.08.2025. The petitioner was at that point in time at Udupi, at 02.00 a.m., the police constable attached to the Whitefield Police Station is said to have travelled to Udupi to take the petitioner into custody and bring him to the Whitefield Police Station and make him sit in the police station for the offence under Sections 273 and 353 of the BNS. The notice under Section 35(3) of the BNSS is said to have been handed over to the petitioner a little distance away from the Whitefield Police Station, after securing him and taking him into custody.
Therefore, the Whitefield Police Station appears to have been violating the law time and again as this Court has repeatedly coming across this violation of law from this Police Station.
The notice under Section 35(3) of the BNSS issued on 05/06.08.2026 is indicative of the fact that the petitioner should appear before the police in the next three days, but he is already in the custody of the police. A notice indicating the later date of appearance, appears to have been used to take the petitioner into custody 3 days prior to the fixed date itself. This has been the modus operandi of the policeman who man the White Field Police Station. Therefore, the Deputy Commissioner of Police, the Assistant Commissioner of Police and the Police Sub-Inspector who had indulged in this act, shall be present before the Court on 29.08.2026 at 02.30 p.m.
In the event, the Deputy Commissioner of Police and the Assistant Commissioner of Police would not be present, this Court would be constrained to summon the Commissioner of Police of the City of Bengaluru to set the house in order.
Learned HCGP waives notice to the respondents.
List on 29.08.2026 at 2.30 p.m.
Till then, there shall be an interim order of stay of further investigation in Crime No.573/2026, qua the petitioner.”
4. The Deputy Commissioner of Police, the Assistant Commissioner of Police and the Investigating Officer of the Whitefield Police Station, within whose jurisdiction the entire episode of the alleged crime unfolded, were directed to remain present before this Court. In obedience to the afore-quoted order, Sri Saidulu Adavath, Deputy Commissioner of Police; Smt. Reena Suvarna, Assistant Commissioner of Police, Whitefield Sub-Division; and Sri Preetham A.D., Police Inspector, are present before the Court. The Police Constable who travelled all the way to Udupi and brought the petitioner from Udupi to Bengaluru is also present before the Court. Their presence assumes significance, for what is alleged is not merely an irregularity in investigation, but an action which, prima facie, appears to have travelled beyond the frontiers of authority conferred by law.
5. This Court, as observed hereinabove, had stayed further investigation noticing what appeared, on the face of the record, to be a blatant infraction of the law declared by the Apex Court in the case of SATENDER KUMAR ANTIL v. CENTRAL BUREAU OF INVESTIGATION AND ANOTHER, reported in 2026 SCC OnLine SC 162, and the principles enunciated by the High Court of Telangana in the case of NALLA BALU v. STATE OF TELANGANA reported in 2025 SCC OnLine TS 855. The judgment in NALLA BALU supra did not remain confined within the territorial contours of the High Court of Telangana. It was carried to the Apex Court in the case of STATE OF TELANGANA v. NALLA BALU in SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 31178/2025, which came to be DISPOSED OF ON 02-02-2026. The Apex Court, after considering the matter in detail, found no warrant to interfere with the directions so issued. Thus, what the High Court of Telangana declared as safeguards against indiscriminate invocation of criminal law, particularly in cases arising out of speech or posts on social media, received the imprimatur of the Apex Court.
6. The directions of the High Court of Telangana in NALLA BALU supra are of considerable significance. They mandate, inter alia, verification of the locus standi of the complainant at the threshold; conduct of a preliminary enquiry wherever warranted; insistence upon a higher degree of circumspection when criminal law is sought to be set in motion on the basis of a speech, expression or social-media post; protection of legitimate political speech and expression; recognition of defamation as a non-cognizable offence; scrupulous adherence to the safeguards governing arrest; and, above all, vigilance against frivolous, vexatious or motivated complaints masquerading as causes for invocation of the coercive machinery of the State. These are not ornamental observations to adorn the pages of a judgment. They are safeguards intended to stand between the citizen and an arbitrary exercise of police power.
7. If the facts of the case at hand are placed on the anvil of the aforesaid principles, what emerges is rather disquieting. There is no complainant who claims to have suffered any injury, insult or grievance on account of the post attributed to the petitioner. Strangely, it is a Police Constable attached to the Whitefield Police Station who perceives himself to be aggrieved by a particular post of the petitioner. The post is forwarded; an apprehension of communal disharmony apparently germinates in the mind of the Police Constable; and, armed with that apprehension, the police machinery travels from Bengaluru all the way to Udupi, where the petitioner was then present, and brings him back to the Whitefield Police Station. Thus, the informant, the perceiver of the alleged offence and the arm of the investigating machinery appear to merge into one continuum. It is this circumstance that makes the conduct of the police worthy of a closer judicial gaze.
8. The learned counsel appearing for the petitioner submits that a notice under sub-section (3) of Section 35 of the BNSS was served upon the petitioner only when he had been brought to within a few yards of the Whitefield Police Station. There is, as matters stand today, no material placed before the Court which would persuade it to disbelieve the said assertion. If that be so, what preceded the service of notice cannot be brushed aside as a voluntary journey undertaken by the petitioner. The petitioner, thereafter, was admittedly within the control of the police—what may appropriately be described, at this stage, as tacit custody.
9. The contention that the petitioner voluntarily travelled in his own car from Udupi to Bengaluru and presented himself before the Whitefield Police Station does not, prima facie, inspire the confidence. The learned counsel for the petitioner would point out that the very Police personnel who had travelled to Udupi to fetch him, accompanied him in the same car throughout the journey to Bengaluru. A citizen does not become a volunteer merely because he is made to travel in his own vehicle. The character of custody is determined not by the ownership of the vehicle in which the citizen travels, but by whether he was, in truth and substance, free to decline the journey and walk away. Liberty cannot be reduced to the make of the car in which it is curtailed. Be that as it may. The infraction complained of is, prima facie, writ large on the record. The action of the police appears to run directly contrary to the safeguards laid down by the High Court of Telangana in the case of NALLA BALU supra. They read as follow:
“…. …. ….
29. Before parting with this judgment, this Court considers it necessary to make certain observations. Having regard to the factual and legal position discussed herein, and with a view to safeguarding fundamental rights as well as preventing unnecessary or arbitrary invocation of police powers, the following operational guidelines for police authorities and Judicial Magistrates should ideally be followed. These directions are particularly relevant in cases where the registration of First Information Reports (FIRs) is sought in connection with such posts. Accordingly, the police authorities are directed to adhere to the following guidelines:
i. Verification of locus standi: Before registering any FIR for alleged defamation or similar offences, the Police must verify whether the complainant qualifies as the “person aggrieved” in terms of law. Complaints by unrelated third parties lacking standing are not maintainable, except where the report concerns a cognizable offence;
ii. Preliminary Inquiry in cognizable offences: Where a representation/complaint discloses a cognizable offence, the police shall, prior to registration of crime, conduct a preliminary inquiry to ascertain whether the statutory ingredients of the alleged offence are, prima facie, made out;
iii. High threshold for media post/speech-related offences: No case alleging promotion of enmity, intentional insult, public mischief, threat to public order, or sedition shall be registered unless there exists prima facie material disclosing incitement to violence, hatred, or public disorder. This threshold must be applied in line with the principles laid down in Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, and Shreya Singhal v. Union of India, (2015) 5 SCC 1;
iv. Protection of political speech/post: The police shall not mechanically register cases concerning harsh, offensive, or critical political speech. Only when the speech amounts to incitement to violence or poses an imminent threat to public order may criminal law be invoked. Constitutional protections for free political criticism must be scrupulously enforced;
v. Defamation as a non-cognizable offence: Since defamation is classified as a non-cognizable offence, the police cannot directly register an FIR or crime in such matters. The complainant must approach the jurisdictional Magistrate. Police action may follow only upon orders of the Magistrate under Section 174(2) of the BNSS;
vi. Compliance with arrest guidelines: In all cases, the police shall strictly comply with the principles laid down in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Automatic or mechanical arrest are impermissible, and the principle of proportionality in the exercise of criminal process must be observed.
vii. Prior legal scrutiny in sensitive cases: In matters involving political speech/post or other sensitive forms of expression, the police shall obtain prior legal opinion from the Public Prosecutor before registering an FIR, to ensure that the proposed action is legally sustainable.
viii. Frivolous or motivated complaints: Where a complaint is found to be frivolous, vexatious, or politically motivated, the police shall close the matter under Section 176(1) of the BNSS, citing absence of sufficient grounds for investigation.
9. The Apex Court examined the afore-quoted judgment of the High Court of Telangana threadbare, more so paragraph 29 of the judgment of the High Court of Telangana and found no warrant whatsoever to interfere with the directions issued therein. The order of the Apex Court reads as follows:
“…. …. ….
“6. However, the State has something to say as regards the broad guidelines laid down by the High Court as contained in para 29 of the impugned judgment is concerned. According to Mr. Luthra, the guidelines issued by the High Court are inconsistent with each other and in such circumstances he urged that this Court should look into the guidelines and rectify the inconsistencies. Para 29 reads thus:-
“29. Before parting with this judgment, this Court considers it necessary to make certain observations. Having regard to the factual and legal position discussed herein, and with a view to safeguarding fundamental rights as well as preventing the criminal process from being invoked mechanically or arbitrarily, it is appropriate to prescribe a set of operational guidelines for 3 police authorities and Judicial Magistrates when dealing with proceedings initiated on the basis of social media posts. These directions are particularly relevant in cases where the registration of First Information Reports (FIRs) is sought in connection with such posts. Accordingly, the police authorities are directed to adhere to the following guidelines:
i. Verification of locus standi: Before registering any FIR for alleged defamation or similar offences, the police must verify whether the complainant qualifies as the “person aggrieved” in terms of law. Complaints by unrelated third parties lacking standing are not maintainable, except where the report concerns a cognizable offence.
ii. Preliminary inquiry in cognizable offences: Where a representation/complaint discloses a cognizable offence, the police shall, prior to registration of crime, conduct a preliminary inquiry to ascertain whether the statutory ingredients of the alleged offence are, prima facie, made out.
iii. High threshold for media post/speech-related offences: No case alleging promotion of enmity, intentional insult, public mischief, threat to public order, or sedition shall be registered unless there exists prima facie material disclosing incitement to violence, hatred, or public disorder. This threshold must be applied in line with the principles laid down in Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, and Shreya Singhal v. Union of India, (2015) 5 SCC 1.
iv. Protection of political speech/post: The police shall not mechanically register cases concerning harsh, offensive, or critical political speech. Only when the speech amounts to incitement to violence or poses an imminent threat to public order may criminal law be invoked. Constitutional protections for free political criticism under Article 19(1)(a) of the Constitution must be scrupulously enforced.
v. Defamation as a non-cognizable offence: Since defamation is classified as a non-cognizable offence, the police cannot directly register an FIR or crime in such matters. The complainant must be directed to approach the jurisdictional Magistrate. Police action may follow only upon a specific order of the Magistrate under Section 174(2) of the BNSS.
vi. Compliance with arrest guidelines: In all cases, the police shall strictly comply with the principles laid down in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Automatic or mechanical arrests are impermissible, and the principle of proportionality in the exercise of criminal process must be observed.
vii. Prior legal scrutiny in sensitive cases: In matters involving political speech/post or other sensitive forms of expression, the police shall obtain prior legal opinion from the Public Prosecutor before registering an FIR, to ensure that the proposed action is legally sustainable.
viii. Frivolous or motivated complaints: Where a complaint is found to be frivolous, vexatious, or politically motivated, the police shall close the matter under Section 176(1) of the BNSS, citing absence of sufficient grounds for investigation.”
7. We have looked into para 29 threadbare. We are of the view that we should not interfere with the impugned judgment and order passed by the High Court including the guidelines issued by the High Court.”
The consequence is inescapable. Once constitutional Courts have delineated the limits within which police power may operate, particularly when speech or expression on social media is sought to be criminalised, those limits cannot be treated as mere advisory signposts, which the investigating machinery may notice at leisure and ignore at convenience. A judicially declared safeguard is not a suggestion to the police; it is a command of law. The police are as much bound by the law declared by constitutional Courts as the citizen is bound by the law enacted by the Legislature.
10. The Apex Court in the case of SATENDER KUMAR ANTIL supra, has held as follows:
“…. …. ….
17. An arrest, being an act done by a police officer in furtherance of an investigation, is discretionary and optional to be applied on the facts of a particular case. Section 35 of the BNSS, 2023 provides for situations, where a person may be arrested by a police officer, without a warrant.
Section 35 of the BNSS, 2023
“35. 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 to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest; or
(c) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with sentence of death and the police officer has reason to believe on the basis of that information that such person has committed the said offence; or
(d) who has been proclaimed as an offender either under this Sanhita or by order of the State Government; or
(e) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(f) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(g) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(h) who has been concerned in, or against whom, a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(i) who, being a released convict, commits a breach of any rule made under sub-section (5) of Section 394; or
(j) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested 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) In all cases where the arrest of a 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 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 person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
(7) No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.”
(emphasis supplied)
18. Section 35(1) of the BNSS, 2023, through the use of the word “may”, makes the position of law rather clear that the power of arrest is discretionary and optional. The power of arrest under Section 35(1)(a) to Section 35(1)(j) of the BNSS, 2023 are distinct and different from each other, with the commonality being an offence which is cognizable in nature.
19. To attract the power of arrest under Section 35(1)(b) of the BNSS, 2023, the conditions mentioned thereunder ought to be complied with scrupulously. Section 35(1)(b)(i) of the BNSS, 2023 must be read together, meaning thereby that compliance with Section 35(1)(b)(i) of the BNSS, 2023 is a sine qua non in all cases of arrests.
20. Section 35(1)(b)(i) of the BNSS, 2023 speaks about the “reason to believe” on the part of the police officer. Such a reason to believe should be formed on the basis of a complaint, information, or suspicion that the person concerned had committed the offence. However, this alone would not suffice. Additionally, any one of the conditions mentioned under Section 35(1)(b)(ii) of the BNSS, 2023 must also be satisfied. In other words, it is not required that all the conditions mentioned under Section 35(1)(b)(ii) of the BNSS, 2023 should be available, but only the existence of one of them that is required.
21. After being satisfied that there is a necessity of arrest, a police officer is bound to record his reasons either for arrest, as provided for under Section 35(1)(b) of the BNSS, 2023, or for merely issuing a notice under Section 35(3) of the BNSS, 2023. Section 35(1)(b) of the BNSS, 2023, thus, carves out an exception, with these inbuilt safeguards.
22. Suffice it is to state that an investigation can go on even without an arrest. While undertaking the exercise of collecting the evidence for the purpose of forming his opinion over the commission of a cognizable offence, a police officer shall press a question, to himself, on the necessity of an arrest. This safeguard is provided as, in any case, the power to arrest an accused person is always available with a police officer even after he records his reasons, in writing, for not doing so at an earlier stage.
Joginder Kumar v. State of UP, (1994) 4 SCC 260
“20…No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”
(emphasis supplied)
23. Section 35(3) of the BNSS, 2023, once again, reiterates the object of the enactment that an arrest by a police officer is not mandatory in all cases. This provision applies to all cognizable offences. However, insofar as the offences punishable with imprisonment up to a period of 7 years are concerned, this provision will have to be read along with Section 35(1)(b) of the BNSS, 2023, and its proviso which mandates the furnishing of reasons, in writing, for both, making an arrest and when there is no requirement to do so. As stated above, the requirement of not arresting an accused is qua the stage of issuing notice under Section 35(3) of the BNSS, 2023. Hence, it is amply clear that a harmonious construction of Section 35(1)(b) and Section 35(3) of the BNSS, 2023 needs to be made.
Satender Kumar Antil v. Central Bureau of Investigation, 2025 SCC Online SC 1578
“22. Section 35(4) of the BNSS, 2023 imposes a duty on the recipient of the notice to the effect that once the notice is served, the person must comply with every term of the notice. Section 35(5) of the BNS, 2023 provides that as long as the person to whom the notice is issued, appears as is required and continues to comply with the notice, they cannot be arrested in relation to the alleged offence. Arrest may be made only if the Investigating Agency records specific reasons as to why the arrest is necessary.”
(emphasis supplied)
24. Section 35(5) of the BNSS, 2023 facilitates the liberty of a person by imposing an implied prohibition of arrest when a person complies with the notice issued under Section 35(3) of the BNSS, 2023. This provision reiterates the fact that any subsequent arrest, being an exception, is warranted only when a police officer forms an opinion for such an arrest, which he is duty bound to record, in writing, by furnishing adequate reasons.
25. With respect to the submission made by the learned Amicus, qua the contradiction in the reasoning of the High Court of Bombay in Chandrabhalchand Bhagnani (supra), on reading of the judgment, we did not find any contradiction, as stated. The judgment has clearly dealt with the mandatory compliance of the provisions of Section 35 of the BNSS, 2023, by the police officer.
26. Hence, we give our imprimatur to the views expressed by the High Court of Bombay and, as already observed by us in this order that, as a matter of course, a notice under Section 35(3) of the BNSS, 2023 is to be issued to an accused or any individual concerned, qua an offence punishable with imprisonment up to 7 years and, that, as long as a person to whom a notice under Section 35(3) of the BNSS, 2023 is issued complies and continues to comply with the terms of the notice then, as per Section 35(5) of the BNSS, 2023, it is not open for the police officer to arrest him unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
Satender Kumar Antil v. Central Bureau of Investigation, 2025 SCC Online SC 1578
“23. Section 35(6) of the BNSS, 2023 lays down the procedure to be followed in case of non-compliance with the notice issued by the Investigating Agency under Section 35(3) of the BNSS, 2023. Non-compliance with a notice does not ipso facto mandate arrest, as there lies no obligation with the Investigating Agency. 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 (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.”
(emphasis supplied)
27. We have already clarified the position qua Section 35(6) of the BNSS, 2023 in our earlier order dated 16.07.2025 wherein, it has been stated that even assuming that the person to whom a notice under Section 35(3) of the BNSS, 2023 has been issued, fails to comply with the terms of the notice or is unwilling to identify himself, an arrest is not a matter of course.
28. We have also clarified, on the earlier occasion, that the procedure contained in Section 35(6) of the BNSS, 2023 has been introduced on the touchstone of Article 21 of the Constitution of India. These inbuilt safeguards are required to be complied with by the police officer, in letter and spirit.
29. From a conspectus of the above, it is amply clear that even if the conditions mentioned under Section 35(1)(b) of the BNSS, 2023 are in existence, there can be no mandatory arrest, as a police officer still may or may not decide to do so.
30. While making an arrest under Section 35(6) of the BNSS, 2023, after the stage of issuing a notice seeking presence under Section 35(3) of the BNSS, 2023, the circumstances and factors that were in existence at the time of issuing the said notice shall not be taken into consideration by a police officer while making an arrest subsequently. In other words, for effecting an arrest under Section 35(6) of the BNSS, 2023, it must be based upon materials and factors which were not available with the police officer at the time of issuing a notice under Section 35(3) of the BNSS, 2023. Therefore, the power of arrest under Section 35(6) of the BNSS, 2023 is to be exercised rather sparingly, only under circumstances as aforementioned.”
(Emphasis supplied at each instance)
The Apex Court, in the afore-quoted judgment, has succinctly delineated when the power of arrest may be wielded by the police and, equally importantly, the procedure that must precede its exercise. The declaration of law is unequivocal. Once the investigating agency chooses to set in motion the procedure contemplated under sub-section (3) of Section 35 of the BNSS by issuance of a notice, it must thereafter remain faithful to that procedure. Having chosen the path of notice, the police cannot abandon it midway and resort to arrest at their whim. It is only when the accused or the noticee fails to comply with the notice, refuses to cooperate with the investigation or otherwise, would attract the circumstance of taking him into custody.
11. A notice under Section 35(3) of the BNSS cannot become a piece of paper ceremonially handed over to a citizen after his liberty has, in substance, already been curtailed. The procedure must precede the coercion; it cannot be manufactured to justify the coercion. Any other interpretation would reduce the statutory safeguard into a hollow ritual and permit the police to accomplish indirectly what the law prohibits them from doing directly.
12. The police force is undoubtedly an indispensable arm of the State, entrusted with the solemn obligation of preserving public order, preventing crime and protecting the life and liberty of the citizen. Yet, the very amplitude of the power placed in its hands demands an equally exacting degree of restraint in its exercise. Police power is not a charter for police absolutism. In a constitutional democracy governed by the rule of law, the police are not a law unto themselves; they are as much subject to the Constitution and the command of the law as the citizen against whom they act; power to arrest cannot become an instrument of oppression; and authority to enforce the law cannot be employed to circumvent the law itself. The uniform may confer authority, but it does not confer immunity from constitutional discipline. Every coercive power of the police carries within it a corresponding obligation to exercise that power fairly, reasonably and for the purpose for which the law has conferred it. The rule of law draws no distinction between the mighty and the meek, between the keeper of the law and the person governed by it. If those entrusted with enforcing the law are permitted to transgress its boundaries with impunity, the law ceases to be a shield for the citizen and becomes a weapon in the hands of the State.
13. The concern of this Court does not stop with the solitary episode presented in the case at hand. The acts of Police Officers manning the Whitefield Police Station have, on more than one occasion, become the subject matter of proceedings before this Court and before co-ordinate Benches of this Court, where the binding declarations of the Apex Court concerning arrest and personal liberty are alleged to have been violated with disturbing regularity. When a binding declaration of law is repeatedly observed in its breach, the Court cannot remain a silent spectator and treat every infraction as an isolated aberration.
14. It is, therefore, imperative that the Director General and Inspector General of Police issue a circular/guidelines binding every Police Station in the State, directing scrupulous compliance with the law declared by the Apex Court in the judgments noticed hereinabove. The circular may take the form of a Government Order, standing instruction, departmental guidelines or such other binding instrument as may be considered appropriate.
15. The guidelines shall make it clear that every Police Officer, irrespective of rank, whether manning a Police Station, a Sub-Division or exercising supervisory jurisdiction, is bound to adhere to the law governing issuance of notice, arrest and curtailment of personal liberty. It shall further indicate that any willful, deliberate or reckless violation of the binding declaration of law would expose the erring officer to initiation of appropriate departmental proceedings, apart from such consequences as may ensue in law. Where such violations are brought before constitutional Courts, the Officer concerned cannot claim immunity from being personally mulcted with exemplary costs, should the facts of the particular case warrant such an order.
16. The Director General and Inspector General of Police shall, therefore, take note of the observations made in the course of this order and issue appropriate circular/guidelines, in the manner indicated hereinabove, to all Police Stations and police formations throughout the State. The guidelines shall specifically advert to the consequences of breach of the law declared by the Apex Court concerning arrest and the safeguards attendant thereto, including initiation of departmental proceedings wherever deliberate or reckless violation is established.
17. The purpose of this direction is not to fetter legitimate investigation, nor to blunt the lawful powers of the police. It is precisely the converse—to ensure that investigation remains legitimate because, it remains within law. The message must, therefore, percolate from the highest echelon of the police establishment to the constable at the Police Station that liberty is the rule, coercion the exception, and procedure the bridge that alone permits the State to travel from one to the other.
18. Registry is directed to communicate this order to the Secretary of Home Department and the Director General and Inspector General of Police – the Head of the Police Force, the Government of Karnataka.
19. The compliance with regard to such guidelines being issued shall be reported to this Court on 25.09.2026.
20. The Officers who are present today, shall also be present on the next date of hearing i.e., 25.09.2026, at 2.30 p.m.
21. Interim order granted earlier, is extended till the next date of hearing.
22. Heard in part.
23. List the matter on 25.09.2026, at 02.30 p.m., for further hearing.
