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
