Karnataka HC Displays Zero Tolerance For Illegal Arrest By State Police

Summary: The Karnataka High Court in KN Mohan Reddy vs State of Karnataka And Another, CRL.P No. 13117/2026, held the petitioner’s arrest by Whitefield Police to be illegal where, despite issuing him a notice under Section 35(3) of the BNSS requiring his appearance on 27.08.2026, the police took him into custody before the stipulated time for compliance. Justice M. Nagaprasanna emphasised that arrest is not an automatic or inevitable part of investigation and that once the investigating officer invokes the statutory notice procedure, the police cannot disregard the very safeguard they have extended to the citizen. Relying, inter alia, on Satender Kumar Antil vs. Central Bureau of Investigation And Another, 2026 SCC OnLine SC 162 and Joginder Kumar v. State of UP, (1994) 4 SCC 260, the Court underscored that the power to arrest is distinct from the necessity to arrest and connected the safeguards under Section 35 BNSS with the protection of personal liberty under Article 21 of the Constitution. The Court further noted that the petitioner was merely an attesting witness to a Will already forming the subject matter of civil proceedings and that no role beyond attestation was disclosed against him. Declaring the arrest illegal, the High Court imposed exemplary costs of ₹3 lakh upon the Investigating Officer, Assistant Commissioner of Police and Deputy Commissioner of Police, specifically directing that the amount should not be borne by the State exchequer, and also ordered departmental scrutiny into the conduct of the officers responsible for directing, permitting or facilitating the illegal arrest.

Background of the Case

It stands absolutely justified and so also is entirely in order which is definitely most heart consoling to see that none other than one of the most prestigious High Court in India with multiple High Court Benches that is the Karnataka High Court in a most learned, laudable, landmark, logical and latest judgment titled KN Mohan Reddy vs State of Karnataka And Another in CRL.P No. 13117/2026 (482 (Cr.PC)/(528BNSS)) and cited in CNR: KAHCO10598672026 that was pronounced most recently on 27.08.2026 in 24-page verdict has not dithered at all in stepping forward to catch the bull by the horns while coming down most heavily on the most shoddy abject manner of functioning in of Whitefield police by crossing all limits in arresting a man illegally which undoubtedly deserves zero tolerance and cannot be ever justified under any circumstances! It ably cites Apex Court judgment in the case of Satender Kumar Antil vs. Central Bureau of Investigation And Another reported in 2026 SCC OnLine SC 162 and Joginder Kumar v. State of UP, (1994) 4 SCC 260. The long and short of para 11 is as stated in this same para crystal clear that, “The principle that emerges is luminous. Arrest is not the inevitable companion of investigation. The power to arrest is not a licence to arrest. Section 35 of the BNSS, deliberately employs the expression “may”, for the law recognises a distinction—fundamental and constitutional—between the existence of power and the necessity for its exercise. The Supreme Court has emphasised that investigation may proceed without arrest and that the Investigating Officer must first ask himself why arrest is required.”

It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna laid bare that the police had issued a notice to the man to appear for investigation but before he could do so, they picked him from his house. How can such an unprofessional conduct by the police be ever justified under any circumstances or allowed to go unpunished at all? It is high time that police reforms as recommended by Apex Court in Prakash Singh vs Union of India (2006) 8 SCC 1 are implemented at earliest and those police officials who don’t lodge FIR or illegally arrests a person are dismissed immediately apart from being sent to jail and huge fine also must be imposed on them as a mandatory rule in order to make them more accountable and transparent in their style of functioning which most unfortunately we don’t see right now happening!

Without mincing any words whatsoever, the Bench made it crystal clear that such conduct by the police amounted to taking a citizen’s liberty for granted. Going a step ahead, we see that the Bench also not only just declared the arrest as “illegal” but also in addition imposed Rs 3 lakh costs on the investigating officer and his superior officers. It is also a most righteous stand that the Bench also directed while making the most pragmatic move that a departmental inquiry be initiated against those responsible for the arrest.

Facts Leading to the Arrest

At the very outset, this most elegant, exemplary, erudite and effective judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna of Karnataka High Court at Bengaluru sets the ball in motion by putting forth aptly in para 2 that, “The Investigating Officer of the Whitefield Police Station is present before the Court.”

To put things in perspective, the Bench envisages in para 3 that, “The petitioner is before the Court calling in question registration of a crime in Crime No.586/2026 for offences punishable under Sections 61, 338 and 340(2) of the BNS.”

While laying bare the purpose of the petition, the Bench observes in para 4 that, “What drove the petitioner to this Court was respondent No.1 – police taking the petitioner – accused No.2, a witness to a particular Will, which is pending adjudication before the competent civil Court, into custody.”

Briefly stated, the Bench then points out in para 5 that, “A crime comes to be registered in Crime No.586/2026 for the afore-quoted offences, by respondent No.2. The petitioner is drawn as accused No.2 in the said crime. The jurisdictional police i.e., Whitefield Police Station issues a notice to the petitioner – accused No.2 under Section 35(3) of the BNSS. The notice comes to be issued on 25.08.2026. The notice was thus unmistakable. The petitioner was granted time till 11.00 a.m. on 27-08-2026 to present himself before the Investigating Officer and join the investigation. What followed, however, turns the statutory safeguard on its head. Even before the appointed hour could arrive—indeed, nearly 48 hours before the petitioner could either comply with or breach the notice—the Police descended upon his residence and took him into custody. The notice under Section 35(3) of the BNSS, which ought to have operated as a shield against unnecessary arrest, was thus rendered a mere piece of paper by the very authority that had issued it.”

Section 35(3) BNSS Notice and Arrest

As it turned out, the Bench enunciates in para 6 mentioning that, “The notice was thus unmistakable. The petitioner was granted time till 11.00 a.m. on 27-08-2026 to present himself before the Investigating Officer and join the investigation. What followed, however, turns the statutory safeguard on its head. Even before the appointed hour could arrive—indeed, nearly 48 hours before the petitioner could either comply with or breach the notice—the Police descended upon his residence and took him into custody. The notice under Section 35(3), which ought to have operated as a shield against unnecessary arrest, was thus rendered a mere piece of paper by the very authority that had issued it.”

Most rightly, the Bench underscores in para 7 holding that, “The sequence of events leaves little room for ambiguity. When the Police themselves commanded the petitioner to appear on 27-08-2026 at 11.00 a.m., the law necessarily afforded him until that hour to demonstrate compliance. Non-cooperation cannot precede the opportunity to cooperate. Disobedience cannot be presumed before the command becomes enforceable. Yet, in the case at hand, the petitioner was arrested before the clock could even begin to test his obedience to the notice.”

Most rationally, the Bench observes in para 8 that, “Once the Investigating Officer elects to invoke Section 35(3) of the BNSS, he cannot, at his whim, simultaneously treat the notice as alive for the citizen and dead for himself. The statutory procedure binds both sides. The notice casts an obligation upon the noticee to cooperate; equally, it casts a corresponding restraint upon the Police against arrest except in circumstances recognised by law. A statutory safeguard cannot become a trap laid by the State—inviting a citizen to appear tomorrow while arresting him today.”

Arrest Not Automatic During Investigation

To put it briefly, the Bench holds in para 11 that, “The principle that emerges is luminous. Arrest is not the inevitable companion of investigation. The power to arrest is not a licence to arrest. Section 35 of the BNSS, deliberately employs the expression “may”, for the law recognises a distinction—fundamental and constitutional—between the existence of power and the necessity for its exercise. The Supreme Court has emphasised that investigation may proceed without arrest and that the Investigating Officer must first ask himself why arrest is required.”

Quite forthrightly, the Bench propounds in para 17 holding that, “The learned State Public Prosecutor–I has made a valiant endeavour to defend the action of the Investigating Officer. But advocacy, however able, cannot breathe legality into an act which the statute forbids. What is inherently contrary to law cannot be sanitised by a subsequent explanation. Liberty once unlawfully taken away does not become lawful merely because the period of deprivation was brief.”

Article 21 and Protection of Personal Liberty

Most forthrightly, the Bench expounds in para 18 holding explicitly that, “This Court, therefore, cannot adopt a hands-off approach. Constitutional Courts are not expected to watch from the sidelines when the executive converts a statutory safeguard into an empty ritual. Section 35 of the BNSS is not a ceremonial provision. It is an embodiment, in procedural law, of the constitutional promise contained in Article 21 of the Constitution of India. An arrest is not an innocuous administrative act. It takes away liberty; it wounds reputation; it places the might of the State against an individual; and, even if the incarceration lasts only for a few hours, those hours cannot be restored to the citizen. Liberty is incapable of restitution in kind. Once lost, time in custody cannot be returned. The only meaningful judicial response to an established invasion is one which not merely declares the illegality but makes the consequence of that illegality real.”

Needless to say, the Bench states in para 19 that, “The arrest of the petitioner is, therefore, declared illegal.”

₹3 Lakh Costs and Departmental Scrutiny

Plainly speaking, the Bench points out in para 20 that, “The Investigating Officer cannot escape with a mere declaration of illegality recorded on paper. The act warrants exemplary costs as also departmental scrutiny, including examination of the role of the supervisory officers who permitted, directed or failed to prevent the arrest.”

Most commendably, we see that the Bench then stipulates in para 21 propounding pinpointedly that, “The question then is: who should bear the monetary consequence? Certainly not the ordinary taxpayer. If compensation or exemplary costs imposed for a demonstrably unlawful act are routinely drawn from the State exchequer, the wrongdoer remains untouched while the public pays for his transgression. That would produce the curious result of the citizen compensating the citizen for an illegality committed by an errant public servant.”

Most significantly, the Bench then encapsulates in para 22 what constitutes the cornerstone of this milestone judgment postulating precisely that, “The costs are, therefore, quantified at `3,00,000/- (Rupees Three Lakhs only) and shall be paid to the petitioner by the Investigating Officer, the Assistant Commissioner of Police and Deputy Commissioner of Police, who are responsible for directing, permitting or facilitating the illegal arrest. The amount shall not be borne by the State exchequer. The original order itself records that the costs are to come from the officer rather than public money. This is not punishment for an error of judgment. It is the consequence of exercising coercive State power in the teeth of an express statutory safeguard.”

Petitioner Was Only an Attesting Witness to the Will

What is even more troubling to note is that the Bench points out in para 23 that, “There is yet another facet which makes the action against the petitioner more disturbing. The petitioner is admittedly only an attesting witness to a Will. The Will is the subject matter of adjudication before the competent civil Court in O.S.No.1708 of 2024. The parties also have the shadow of an earlier civil proceeding in O.S.No.10195 of 1995 hanging over them, and the later suit is projected as an offshoot of the earlier litigation.”

Be it noted, the Bench then notes in para 24 that, “The dispute, on its face, therefore bears the unmistakable complexion of a civil contest. Whether the Will is genuine, valid, duly executed or otherwise is a matter resting within the province of the competent civil Court. The petitioner is not the propounder of the Will. He is not its beneficiary. His admitted role is that of an attesting witness.”

It would be instructive to note that the Bench then hastens to add in para 25 noting that, “An attesting witness witnesses execution; he does not, merely by putting his signature to an instrument, inherit every allegation subsequently levelled against its maker or beneficiary. To permit an attesting witness to be hauled into criminal proceedings merely because the instrument attested by him subsequently becomes contentious would place every witness to a document under the perpetual shadow of criminal prosecution.”

It is worth noting that the Bench notes and holds in para 26 that, “The allegations concerning Sections 61, 338 and 340(2) of the BNS, as projected, are principally directed against accused No.1. Against the petitioner, the record discloses no role beyond attestation of the Will. This makes his precipitate arrest all the more inexplicable. The source order itself records that the dispute is facially civil and that the petitioner is only an attesting witness.”

Protective Order and Next Listing

For sake of clarity, the Bench then clarifies in para 27 stating that, “It is made clear that the protective order dated 25.08.2026 is confined exclusively to the petitioner–accused No.2 and shall not enure to the benefit of accused No.1.” Finally, the Bench then concludes by directing and holding in para 28 that, “List the matter on 03.09.2026, in the fresh matters list.”

In conclusion, it is high time that all the Judges of the Supreme Court and so also of the High Courts and District Courts must in similar such cases emulate this most extremely progressive judgment which makes it indubitably clear that the police cannot just get away by indulging in illegal arrests! I personally most strongly believe that it is high time that such most erudite Judges like Hon’ble Mr Justice M Nagaprasanna of Karnataka High Court at Bengaluru be elevated without any more further delay to the Apex Court as we saw earlier in case of Hon’ble Mr Justice JB Pardiwala who was elevated to Apex Court directly without becoming Chief Justice of any High Court which I personally found most intriguing after seeing his giving bail to a person accused of indulging in forced conversion which definitely cannot be ever justified and State Cabinet of Goa most recently has in a landmark move approved a Bill against religious conversion proposing life imprisonment among other stringent penalties!