CASE NAME: Mr. K.N. Mohan Reddy v. State of Karnataka and Another
CASE NUMBER: Crl. P . No. 13117/2026 (482 CrPC/528 BNSS)
COURT: High Court of Karnataka at Bengaluru
DATE: 27 August, 2026
QUORAM: Hon’ble Mr. Justice M. Nagaprasanna
FACTS
The petitioner is an attesting witness to a Will which is pending adjudication in O.S. No.1708 of 2024 before the competent civil court (para 4, para 23). On 25.08.2026, the petitioner was issued a notice to be present before the Investigating Officer on 27.08.2026 at 11.00 a.m. under Section 35(3) of the BNSS. Despite the future date of the appearance as mentioned in the notice, the police had arrested the petitioner on the morning of 25.08.2026, and brought him before the jurisdictional Magistrate around 3.00 p.m. the same day (paras. 6, 9). Before the High Court, an urgent mention was made which was followed by the High Court passing an interim order on the same date, directing for immediate release and calling upon IO to appear and show cause against exemplary costs (para 9 of the order dated 25.08.2026).
ISSUES
- Whether an arrest made prior to the date of appearance set in a notice issued pursuant to section 35(3) of the BNSS, 2023 is lawful.
- Whether the non-recording of the reasons for arrest in violation of proviso to Section 35(1)(b) of the BNSS and Section 35(6) same vitiates the arrest.
- Whether imposing exemplary costs and personal monetary liability against the Investigating Officer and supervisory officers, a legitimate consequence of illegal arrest?
LEGAL PROVISIONS
- Section 35(1), 35(1)(b)(i)&(ii), 35(3), 35(4), 35(5), 35(6) of BNSS, 2023 arrest without warrant- “reason to believe” and necessity for arrest are required; where arrest is not required, notice to appear is required and noticee is required to comply with the notice; non-compliance alone does not justify arrest without recording reasons.
- Article 21 of the Constitution of India which guarantees personal liberty except according to procedure established by law, which the courts have observed as the constitutional foundation of the safeguards provided in section 35 of BNSS.
- Section 482 CrPC / 528 of BNSS provides the High Court’s inherent power to prevent abuse of process and secure ends of justice, which is invoked here to test legality of arrest and grant relief.
- Case Laws- Satender Kumar Antil v. CBI, 2026 SCC OnLine SC 162 (paras 11 and 21 of the impugned order),
Satender Kumar Antil v. CBI, 2025 SCC OnLine SC 1578 (paras 23–24 of the impugned order),
Joginder Kumar v. State of U.P., (1994) 4 SCC 260 (para 22 of the impugned order).
ARGUMENTS
PETITIONER: Learned counsel for the petitioner argued that the non-cooperation on the part of petitioner could not have been based on the notice dated 25.08.2026 under Section 35(3) of the BNSS giving a statutory window of 48 hours to make an appearance as the arrest was made well before that hour, meaning that the petitioner had not yet been given an opportunity to cooperate or disappear. It was advanced that Sections 35(4) and 35(5) of the BNSS create a reciprocal duty, that is, the noticee must comply but at the same time the police are afforded the same restrictions unless non-compliance is shown and fresh reasons recorded. The petitioner, being an attesting witness in a Will under civil adjudication, had no role except that of an attesting witness, and the arrest was disproportionate and on no account necessary and urged his immediate release along with exemplary costs against the erring officer (paras 6-8).
RESPONDENT: Learned State Public Prosecutor I appeared and defended the action of the Investigating Officer. However, he did not place any supervening circumstance or reasons or material records before the Court on a prior basis to justify the arrest before the date of appearance on the notice. No explanation was offered for arresting the petitioner on 25.08.2026 despite commanding his appearance only on 27.08.2026, nor was any case made out under Section 35(1)(b) or Section 35(6) of the BNSS for dispensing with the notice procedure already invoked (paras 13, 17).
ANALYSIS
The officer had issued the notice under Section 35(3) on 27.08.2026, which was the date for the appearance of the petitioner; however, the petitioner was caught by the police almost 48 hours prior to that date on 25.08.2026, leaving no scope for the officer to form any opinion of the petitioner’s non-cooperation. The Court said that Section 35(1)(b) and Section 35(3) must be interpreted together and that recording of reasons for arrest of a person or issuing of a notice alone is not discretionary but a safeguard inherent in Article 21 of the Constitution. The Court in Satender Kumar Antil v CBI held that mere failure to comply with a notice cannot warrant arrest, which is a last measure and can be done only on fresh material emerging after the notice, and not on facts which are already available at the time of issuing the notice. The Investigating Officer, on being questioned about whom the State relied, gave no explanation when asked and even his counsel failed in providing any valid justifications, which the Court held could not be cured by advocacy where the statute itself forbade it. The Court also observed that the petitioner’s involvement in the underlying dispute was limited to that of an attesting witness to a Will in civil proceedings, which made the action to be taken against him even less justified, and further held that liberty wrongfully withheld could not be deemed meaningless merely because he was kept in custody for a short duration of time.
JUDGMENT
The High Court ruled in favour of the petitioner and declared his arrest dated 25.08.2026 illegal, confirming his release already secured under the interim order passed on the same date. The High Court in the process held the police had arrested the petitioner before the date of his appearance as set in the Section 35(3) notice and directed the Investigating Officer, the Assistant Commissioner of Police and the Deputy Commissioner of Police to personally pay exemplary costs of ₹3,00,000/- to the petitioner, excluding the State exchequer.
CONCLUSION
The High Court has said that if a date for the appearance/arrest is fixed in a notice issued under Section 35(3) of the BNSS, appearance/arrest can only be affected on that date and not before. Thus, arrest for an offense prior to the beginning of the compliance window cannot be justified simply because the authority to arrest is provided by the statute. In addition, the High Court said that liberty that is unlawfully deprived is not curable by the fact that the duration of such deprivation is of short duration, but this must be attended by the cost of the irregularity which must be borne by the officers who are guilty of the irregularity and not by the State exchequer.
“PRIME LEGAL is a National Award-winning law firm with over two decades of experience across diverse legal sectors. We are dedicated to setting the standard for legal excellence in civil, criminal, and family law.”
WRITTEN BY: HARSHMEET KAUR SUDAN
Find the attached judgement copy here: Mr. K.N. Mohan Reddy v. State of Karnataka & Another
