Introduction:

In a strong reaffirmation of personal liberty and the limits of police power, the Karnataka High Court has declared the arrest of an accused who was also an attesting witness to a disputed Will to be illegal, sharply criticising the police for acting in a manner the Court described as reflective of “police raj”. The Court not only condemned the arrest as contrary to the statutory procedure but also imposed exemplary costs of ₹3,00,000 on the Investigating Officer and the superior police officials responsible for failing to exercise proper supervision.

The case, Mr. K.N. Mohan Reddy v. State of Karnataka & Another, Crl. P. No. 13117/2026, came before the Karnataka High Court in connection with a criminal case registered at the Whitefield Police Station. Justice M. Nagaprasanna, sitting as a Single Judge, examined the legality of the petitioner’s arrest after the police themselves had initiated the statutory procedure by issuing him a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The controversy arose from a dispute concerning a Will that was approximately three decades old and related to immovable property situated at Nallurahalli. The petitioner was not alleged to be the beneficiary of the Will. His role, according to the case placed before the Court, was that of an attesting witness to the document. Nevertheless, he was arraigned as accused No.2 in an FIR registered for offences under Sections 61, 338 and 340(2) of the Bharatiya Nyaya Sanhita, 2023, relating respectively to criminal conspiracy, forgery of a Will or other specified documents, and fraudulent or dishonest use of a forged document as genuine.

The beneficiary of the disputed Will was arraigned as accused No.1. The Court found it significant that while the beneficiary was not taken into custody, the police proceeded to arrest the attesting witness. This apparent inconsistency became one of the factors that prompted serious judicial scrutiny of the fairness and legality of the police action.

According to the petitioner, the Investigating Officer issued a notice under Section 35(3) of the BNSS on August 25, 2026, directing him to appear before the Whitefield Police Station at 11:00 AM on August 27, 2026. Section 35(3) forms part of the statutory safeguards governing arrest and empowers a police officer to issue a notice requiring a person to appear before him where arrest is not considered necessary.

However, the petitioner alleged that the procedure adopted by the police was wholly inconsistent with the purpose of the notice. In the early hours of the same day on which the notice was issued, police officials allegedly came to his residence, served the notice and immediately took him into custody. The petitioner was therefore arrested two days before the date fixed for his appearance and before he was given any opportunity whatsoever to comply with the notice.

This sequence of events lay at the centre of the challenge before the High Court. The Court was required to consider whether the police, after issuing a notice under Section 35(3) requiring an accused to appear on a future date, could immediately arrest him without waiting for compliance or establishing any refusal or non-cooperation on his part.

The case also raised broader concerns regarding the increasing use of criminal proceedings in disputes that substantially concern property and civil rights. The disputed Will was several decades old, and the petitioner’s alleged connection with the transaction was that he had acted as an attesting witness. The Court therefore examined whether the facts disclosed a genuine criminal investigation requiring coercive police action or whether the criminal process was being allowed to intrude into what was, at least prima facie, a civil dispute.

Justice Nagaprasanna’s observations went beyond the legality of one arrest. The Court expressed concern about a pattern in which citizens were allegedly being taken into custody without adequate legal justification. It stressed that the liberty of an individual cannot be treated as something that can be curtailed merely because an influential complainant has initiated a criminal case or because an investigating agency chooses to act without properly following statutory safeguards.

The High Court ultimately declared the petitioner’s arrest illegal, imposed costs of ₹3,00,000 and directed that the amount should not be paid from the State exchequer. Instead, the burden was placed upon the Investigating Officer and the officials responsible for the relevant police station and supervisory functioning. The Court also directed departmental action against the officer concerned and the superior officials who, according to the Court, had failed in their supervisory responsibilities.

The Court further granted an interim stay of the criminal proceedings insofar as the petitioner, accused No.2, was concerned. At the same time, it made it clear that the interim protection would not extend to accused No.1, the alleged beneficiary of the Will. The order thus carefully confined the relief to the petitioner while permitting the investigation to continue against the other accused in accordance with law.

Arguments of the Parties:

The petitioner’s principal argument was that his arrest was patently illegal because the police had themselves invoked the procedure under Section 35(3) of the BNSS and then completely disregarded its purpose. The petitioner contended that the notice required him to appear before the police on August 27, 2026. Instead of allowing him the opportunity to comply, the police allegedly arrested him on August 25 itself. According to the petitioner, this amounted to an arbitrary deprivation of liberty without any legally sustainable justification.

The petitioner argued that a notice under Section 35(3) is not an empty formality. It is part of a statutory mechanism intended to ensure that arrest is not routinely resorted to in cases where a person’s appearance can be secured through a notice. Once the investigating agency concludes that immediate arrest is not necessary and formally calls upon a person to appear, the person must ordinarily be afforded a genuine opportunity to cooperate with the investigation.

It was submitted that the petitioner had not been given even a single opportunity to demonstrate compliance. There was no allegation that he had failed to appear pursuant to an earlier notice, refused to cooperate, attempted to abscond, interfered with the investigation or acted in any manner that justified an immediate departure from the procedure initiated by the police themselves.

The petitioner further relied on the nature of his alleged role in the dispute. He contended that he was merely an attesting witness to a Will that was executed decades ago and that his involvement did not automatically establish participation in any alleged forgery or conspiracy. The petitioner maintained that a person who witnesses an instrument cannot be casually subjected to criminal investigation merely because the validity or genuineness of that instrument is later disputed.

According to the petitioner, the underlying controversy was essentially civil and related to competing claims over immovable property. A dispute over the genuineness of a Will, by itself, could not justify the use of police powers unless specific and credible material disclosed the ingredients of a criminal offence. The petitioner therefore argued that the criminal process was being improperly used in a dispute that should primarily be resolved before a competent civil court.

The petitioner also questioned the fairness of the investigation. The beneficiary of the Will, who had been arraigned as accused No.1, had not been arrested, whereas the police chose to take into custody the attesting witness, who was accused No.2. This, according to the petitioner, demonstrated an arbitrary and selective approach that required judicial intervention.

The State and the police authorities, on the other hand, were required to justify the registration of the FIR and the investigative action taken in relation to the alleged offences. The FIR concerned serious accusations involving criminal conspiracy, forgery and the use of a forged document. From the perspective of the investigating agency, the registration of such offences could ordinarily entitle the police to conduct an investigation into the circumstances surrounding the execution and use of the disputed Will.

The State’s case would necessarily rest on the proposition that the police were entitled to investigate where allegations went beyond a mere civil dispute and disclosed possible criminality. A Will, though connected with succession and property rights, can also become the subject of criminal proceedings if there is material suggesting fabrication, forgery, dishonest use or a conspiracy to create or use a false document.

However, the State faced serious difficulty in explaining the specific manner in which the petitioner was arrested. When the Investigating Officer appeared before the Court, the Court directly questioned him regarding the reason for issuing a notice under Section 35(3) and then arresting the petitioner before the date mentioned in that very notice. The Court also sought an explanation regarding the decision to leave accused No.1, the beneficiary of the Will, while taking the attesting witness into custody.

The Investigating Officer was unable to provide a satisfactory answer to the Court’s queries. The absence of a clear explanation became a significant factor in the Court’s assessment of the legality of the arrest. The Court also questioned whether the arrest had been carried out under pressure from some superior officer or other influential person, particularly because the officer appeared unable to explain the rationale for his own action.

The case thus revealed a crucial distinction between the power to investigate and the power to arrest. The State may register and investigate a cognisable offence where the statutory ingredients are prima facie disclosed. But the existence of an investigation does not automatically mean that arrest is necessary or legally justified. Arrest affects the fundamental right to personal liberty and must therefore be supported by statutory grounds and exercised in conformity with the procedural safeguards laid down by law.

The petitioner’s challenge was essentially directed against the arbitrary exercise of this coercive power. He did not seek to prevent all investigation against every person connected with the disputed Will. Rather, he challenged the immediate arrest and the continuation of proceedings against him on the ground that his role as an attesting witness, combined with the facts surrounding the issuance of the Section 35(3) notice, demonstrated a clear abuse of the criminal process.

The competing positions therefore required the High Court to strike a balance between the State’s power to investigate allegations of forgery and a citizen’s right to be protected against unnecessary and unlawful arrest. The Court’s answer was that investigative power cannot be exercised by ignoring the very safeguards that the criminal procedure law places upon the police.

Court’s Judgment:

The Karnataka High Court came down heavily on the police and held that the arrest of the petitioner was, on the face of it, illegal. The Court’s reasoning began with the basic proposition that once the police choose to set the statutory procedure under Section 35(3) of the BNSS into motion, they cannot arbitrarily defeat that procedure by immediately taking the person into custody without any intervening circumstance justifying arrest.

The Court noted that the petitioner had been formally directed to appear before the police on August 27, 2026. The time fixed for his appearance had not even arrived when the police took him into custody. There was, therefore, no question of the petitioner having disobeyed the notice or demonstrated non-cooperation. In these circumstances, the Court found that the police had deprived him of his liberty before giving him an opportunity to comply with the statutory process.

The judgment emphasised that the procedure under Section 35(3) is intended to act as a safeguard against unnecessary arrests. Where the police issue a notice because arrest is not considered necessary at that stage, the person is expected to cooperate with the investigation by appearing as directed. If the person complies and continues to cooperate, the statutory scheme places meaningful restrictions on the routine use of arrest.

The Court observed that the only circumstance warranting the petitioner’s custody after the issuance of such a notice would arise if he displayed non-cooperation or if legally sustainable circumstances subsequently emerged that justified arrest. In the present case, however, the police acted before the date of appearance and before any question of non-compliance could arise.

This, according to the Court, was a direct affront to the procedural safeguards governing personal liberty. Justice Nagaprasanna made it clear that the police cannot issue a statutory notice with one hand and nullify it with the other by immediately arresting the very person who has been directed to appear on a future date.

The Court also referred to the settled principles governing arrest laid down by the Supreme Court. Although the order, as reflected in the case summary, did not rely upon a particular precedent as the sole foundation of the decision, the Court referred to the procedural requirements flowing from the judgments of the Apex Court concerning the necessity of arrest and the protection of personal liberty. The judgment therefore proceeded on the established principle that arrest cannot be treated as an automatic consequence of the registration of an FIR.

The Court was particularly disturbed by the inability of the Investigating Officer to explain why the petitioner was arrested. When asked whether he had acted under pressure or under directions from others, the officer had no satisfactory response. The Court noted that there was no explanation as to why the statutory procedure and the safeguards recognised by judicial decisions were not followed either by the Investigating Officer or by the superior officials responsible for supervising the investigation.

The High Court’s concern extended to the broader functioning of the police station. It rejected the suggestion that the entire responsibility could simply be placed on a single Sub-Inspector. While the Investigating Officer had directly participated in the arrest, the Court held that supervisory officers could not escape scrutiny where there had been an apparent failure to ensure that the law was followed.

The Court therefore held that the Officer-in-Charge of the police station and other superior officials responsible for supervision had also failed in their duties. The Court observed that illegal interference with the liberty of a citizen cannot be viewed merely as an individual error when the institutional chain of supervision has failed to prevent or correct the illegality.

The Court’s remarks about “police raj” reflected its strong disapproval of an approach in which police officers act as though the power to investigate includes unrestricted authority to take citizens into custody. The Court made it clear that the criminal justice system is governed by law, procedure and constitutional principles, and not by the personal discretion or external influence of individual police officers.

Another important aspect of the judgment concerned the nature of the underlying dispute. The Court observed that the matter appeared, on its face, to be predominantly civil in nature. The controversy related to a Will that was approximately three decades old and to rights over immovable property. The petitioner was alleged to have acted as a witness to the Will. In the absence of specific material demonstrating criminality on his part, the Court found it necessary to protect him against the continuation of coercive proceedings.

The Court reiterated the principle that the police should not casually enter the domain of civil disputes merely because one of the parties alleges that a document is invalid or disputed. A Will can certainly become the subject of criminal investigation if clear allegations of forgery, fabrication or other criminal conduct are made out. But the mere existence of a property dispute or a challenge to the genuineness of a document does not give the police unrestricted authority to treat every person associated with that document as a criminal suspect.

The Court also took note of the petitioner’s limited role as an attesting witness. It observed that the law has consistently recognised that a witness to an instrument cannot be hauled into a criminal investigation simply because the instrument is later challenged, unless the investigation reveals specific circumstances indicating the witness’s involvement in the alleged offence. The Court referred generally to the settled proposition emerging from several decisions of the High Courts and the Supreme Court.

On the facts before it, the High Court found that the role attributed to the petitioner did not, at that stage, justify the coercive action taken against him. This was particularly so when the police could not explain why accused No.1, the alleged beneficiary of the Will, was left untouched while the attesting witness was arrested.

The Court did not, however, grant a blanket stay of the entire investigation. Recognising the distinction between the petitioner’s position and that of accused No.1, the Court confined its interim protection to accused No.2. The proceedings against accused No.1 were permitted to continue. This aspect of the order reflects the Court’s attempt to prevent the misuse of criminal process against one individual without obstructing a lawful investigation against another person.

The most striking part of the order was the imposition of exemplary costs of ₹3,00,000. The Court held that the cost of the illegal arrest should not be paid from the State exchequer. Public funds, the Court observed in substance, cannot be used to compensate for an unlawful act committed by officials acting contrary to law. The financial burden was therefore directed to be borne by the Investigating Officer and those responsible for the supervisory failures at the Whitefield Police Station.

The Court’s decision to make the officers personally accountable carries an important message. Compensation paid from public money may provide relief to a victim, but it can also dilute individual accountability when the illegality results from a blatant disregard of legal procedure. By directing that the costs should not come from the State exchequer, the Court sought to ensure that those responsible for the unlawful exercise of power faced a direct consequence.

The Court also directed the initiation of departmental proceedings against the Investigating Officer and the superior officials responsible for permitting or failing to prevent the violation of law. This reinforced the principle that illegal arrest is not merely a procedural irregularity that can be ignored after the person is released. Where liberty has been unlawfully curtailed, institutional accountability may also be necessary.

The judgment is a strong reminder that arrest is a serious intrusion upon personal freedom. The registration of serious offences does not give the police a licence to bypass the safeguards contained in the BNSS. The necessity for arrest must be independently justified, and where the police themselves issue a notice requiring future appearance, they must ordinarily allow the statutory process to operate.

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