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Directs DGP to Issue Binding Arrest Guidelines After Violation
In a significant move to curb arbitrary arrests, the has directed the to issue binding circulars ensuring strict compliance with . The direction came after the court found that the had violated the law while arresting Hindu activist Sri Mohan Gowda over a Facebook post.
A Facebook Post, a Midnight Arrest, and a Judicial Wake-Up Call
The case arose from an FIR registered against Mohan Gowda under , for a post celebrating the cancellation of comedian Kunal Kamra's show at Whitefield as a "victory for Hindu unity." The police, acting on a representation from the , travelled from Bengaluru to Udupi at 2 a.m. and took Gowda into custody. The notice under was allegedly served only when he was brought within yards of the Station—after his liberty had already been curtailed.
Justice M. Nagaprasanna, hearing the petition, summoned the Deputy Commissioner of Police, Assistant Commissioner of Police, and the investigating officer to remain present in court. The court observed that the police's modus operandi indicated a "blatant infraction" of the law laid down by the in Satender Kumar Antil v. () and the guidelines approved in v. Nalla Balu ().
Under Scrutiny: 'Blatant Infraction' of Arrest Law
The High Court noted that this was not an isolated incident. The
Station had repeatedly violated arrest safeguards in other cases.
"When a
is repeatedly observed in its breach, the Court cannot remain a silent spectator and treat every infraction as an isolated aberration,"
the court stated.
The court underscored that a notice under
"cannot become a piece of paper ceremonially handed over to a citizen after his liberty has, in substance, already been curtailed."
It added,
"The
; it cannot be manufactured to justify the coercion."
The Law of Arrest: Section 35 BNSS and the 's Mandate
Section 35 of the BNSS empowers police to arrest without warrant in cognizable offences, but with critical qualifications. For offences punishable with imprisonment up to seven years, arrest is not mandatory. The in Satender Kumar Antil held that a notice under Section 35(3) is the rule, and arrest is an exception that requires recording of reasons demonstrating necessity. The court clarified that even if conditions for arrest exist, the power must be exercised sparingly.
The High Court adopted these principles, noting that the police had failed to justify the necessity of arrest. The petition alleged that the notice was antedated and that Gowda was taken into custody without any prior compliance with the statutory procedure.
DGP's Circulars: A Blueprint for Lawful Investigation
In compliance with the court's direction, DGP Dr. M.A. Saleem issued two comprehensive circulars on September 19 and 21, .
First Circular on Section 35 BNSS Compliance: - All material relating to the decision to arrest or not—including grounds of necessity, reasons recorded, the Section 35(3) notice, proof of service, and compliance—shall form part of the case diary. - SHOs and Investigating Officers are personally responsible for compliance. - Supervisory officers must treat violations as serious lapses and initiate departmental proceedings. - Willful or reckless violations expose officers to departmental action and personal costs imposed by courts.
Second Circular on Social Media FIRs: This circular adopts the eight guidelines from Nalla Balu : 1. Verification of of the complainant before registering FIRs for defamation or similar offences. 2. before registration of crime in cognizable offences. 3. High threshold for speech-related offences—no case unless there is material disclosing (citing and ). 4. Protection of under . 5. Defamation treated as non-cognizable; complainant must approach the Magistrate. 6. Strict compliance with Arnesh Kumar v. State of Bihar ()—no . 7. Prior legal opinion from the Public Prosecutor in sensitive cases involving . 8. to be closed under .
'Liberty is the Rule, Coercion the Exception': Court's Key Observations
The High Court made several pointed observations during the hearing:
"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
. In a
governed by the
, 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."
The court also orally referred to another case from Dharwad where a person who was not even an accused was kept in custody for 72 hours without any FIR.
"How do you tolerate all this? It is not necessary for the Court to do this. You [police] yourself should do it. What I am saying is the police should not be policed at all. What state are we in? We are policing the police,"
the court remarked.
What This Means for Police and Citizens
The circulars are binding on all police stations and formations in Karnataka. They mark a shift from routine, mechanical arrests to a process-driven, necessity-based approach. For citizens, these guidelines offer a safeguard against , especially in cases involving social media expression.
The High Court accepted the circulars as comprehensive compliance with its earlier directions. The presence of the officers was dispensed with, and the matter is listed for further hearing on . The court made it clear that any future violation will be met with departmental action and personal cost liability.
This judgment reinforces the constitutional principle that . It serves as a reminder to police forces across the country that the power to arrest must be exercised with circumspection and in .
