The Karnataka High Court on Tuesday pulled up the Bengaluru police for arresting a man two days before the date on which he was asked to appear before the cops in connection with a forgery case investigation.
The man was arrested on August 25. However, this was after the police issued a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), directing him to appear before the police on August 27.
Justice M Nagaprasanna termed the arrest a "classic illustration" of an illegal arrest and ordered the man's immediate release.
"If the petitioner has been taken into custody by this illegal act of the investigating officer, the matter would be viewed seriously. The petitioner shall be released forthwith from custody," the Court said.
Section 35(3) requires the police to issue a formal notice of appearance to an accused person instead of arresting them immediately for crimes carrying a punishment of up to seven years.
The Court emphasised that once a notice under Section 35(3) of the BNSS is issued, arrest can ordinarily follow only if the noticee fails to cooperate with the investigation.
"As this Court is repeatedly observing, citizens are arrested without rhyme or reason. The case forms a classic illustration of such illegal arrest. The petitioner was served with a notice under Section 35(3) of the BNSS. Once the notice is issued under Section 35(3), the arrest could come about only if the noticee does not cooperate with the investigation," the Court said.
The Court also directed the investigating officer attached to Whitefield Police Station to remain personally present before it on Thursday (August 27) to explain why exemplary costs should not be imposed on him for the hasty arrest.
"When you issue a notice asking him (the arrested man) to come on August 27, how do you pick him up on August 25? Arresting someone has become a joke to the police here? Every day I am seeing these cases," Justice Nagaprasanna said.
The Court was hearing a plea to declare the August 25 arrest of a man illegal.
Advocate Angad Kamath represented the arrested man (petitioner) and submitted that he was picked up from his residence by the Whitefield police on Tuesday morning. This was despite him being served with a notice under Section 35(3) BNSS requiring his appearance only on August 27.
Kamath submitted that the petitioner had already been produced before the jurisdictional magistrate and remand proceedings were underway.
According to the petitioner, the only allegation against him was that he was a signatory to a will which another person claimed was forged. The dispute stemmed from a long-pending civil litigation between two families, the petitioner said.
"Civil litigation has been pending for 16 years. Despite a BNSS notice asking me to appear on August 27, I was picked up from my house this morning and taken into custody," Kamath submitted.
The Court held that the arrest appeared to be illegal on the face of it.
"The notice issued to the petitioner admittedly directed him to appear before the police for the purpose of investigation on August 27, 2026, which date is yet to come. But the petitioner is taken into custody, which act on the face of it is illegal," its order recorded.
Taking serious note of the conduct of the investigating officer (IO) in this matter, the Court proceeded to direct him to remain present before it on August 27 at 2:30 PM.
"The investigating officer shall be present before this Court on Thursday at 2:30 PM to answer as to why exemplary costs should not be imposed upon him for an act done completely contrary to law, taking away the liberty of citizens in this fashion," the Court said.
State Public Prosecutor BN Jagadeesha assured that the IO would be present. He informed the Court that the offence under Section 338 (forgery of valuable security, wills, and authority to adopt) of the Bharatiya Nyaya Sanhita (BNS) had been invoked in the case. He also said that the notice under Section 35(3) of BNSS ought not to have been issued in the first place.
The Court, however, asked how the police could have arrested a person once it formally directed him to appear on a later date.
"After giving a police notice, how did you take him into custody? What nonsense is happening here? Who is this man who has done this? Keep him present," Justice Nagaprasanna orally observed.
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