Section 35(3) BNSS Notice Must Precede Police Coercion, Not Follow It: Karnataka High Court Issues Statewide Directions

Background and Context

The Karnataka High Court, in Sri Mohan Gowda v. State of Karnataka, W.P. No. 25680/2026, decided on 29 August 2026, delivered a significant ruling on the procedural safeguards governing notice and arrest under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Court's central holding is unambiguous: a notice under Section 35(3) of the BNSS must be issued before police take any action that curtails a person's liberty — not afterwards as a paperwork exercise to legitimise coercion that has already occurred.

Following the Court's directions, the Karnataka Director General and Inspector General of Police issued a circular on 14 September 2026, binding all police stations across the State to comply with the statutory safeguards relating to notice and arrest under the BNSS.

Facts of the Case

The matter originated from a Facebook post made by the petitioner in connection with the cancellation of a proposed comedy show at Whitefield, Bengaluru. The petitioner expressed that the cancellation represented a victory for Hindu unity. A constable attached to the Whitefield Police Station independently perceived the post as a potential source of communal disharmony and, without any complainant coming forward, set the criminal law machinery into motion on a suo motu basis.

Crime No. 573/2026 was registered against the petitioner under Sections 217 and 353(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS).

The petitioner's core grievance before the Court was that:

  • Police personnel travelled from Bengaluru all the way to Udupi, where the petitioner was present
  • He was brought back to Bengaluru under police escort
  • The notice under Section 35(3) of the BNSS was served upon him only when he was already within a few yards of the Whitefield Police Station
  • The notice, dated 05/06.08.2026, directed him to appear before police on a date three days later — yet he had already been brought into de facto police custody before that date arrived

The police contended that the petitioner had voluntarily travelled in his own vehicle. The High Court found this explanation unpersuasive at the prima facie stage.

The Court's Analysis

On the Question of Voluntariness

The High Court rejected the argument that travelling in one's own car makes the journey voluntary when police accompany and control the person throughout. The Court observed:

"A citizen does not become a volunteer merely because he is made to travel in his own vehicle. The character of custody is determined not by the ownership of the vehicle in which the citizen travels, but by whether he was, in truth and substance, free to decline the journey and walk away. Liberty cannot be reduced to the make of the car in which it is curtailed."

The determinative question, according to the Court, was not the mode of transport but whether the petitioner retained any meaningful freedom to refuse. Since police personnel accompanied him for the entire journey, the answer was plainly in the negative.

On the Timing and Effect of a Section 35(3) Notice

The Court emphasised that a Section 35(3) notice serves a substantive protective function — it is not a ceremonial document that can be thrust into a person's hands after his liberty has already been effectively curtailed. The Court held:

"A notice under Section 35(3) of the BNSS cannot become a piece of paper ceremonially handed over to a citizen after his liberty has, in substance, already been curtailed. The procedure must precede the coercion; it cannot be manufactured to justify the coercion. Any other interpretation would reduce the statutory safeguard into a hollow ritual and permit the police to accomplish indirectly what the law prohibits them from doing directly."

The illogic of the situation was further highlighted by the Court: the notice itself directed the petitioner to appear on a future date, yet the police had already brought him to the station three days before that date. A notice that directs future appearance cannot serve as the justification for prior physical custody.

Power of Arrest Without Warrant

Section 35(1) of the BNSS uses the word "may", making it unmistakably clear that the power of arrest is discretionary and not mandatory. For offences punishable with imprisonment of up to seven years, Section 35(1)(b) requires the police officer to:

  1. Have reason to believe — based on a complaint, information or suspicion — that the person committed the offence; and
  2. Be satisfied that arrest is necessary for one of the enumerated grounds, such as:
    • Preventing further offence
    • Ensuring proper investigation
    • Preventing tampering with evidence
    • Preventing inducement or threat to witnesses
    • Ensuring presence before the Court

The officer is additionally required to record reasons in writing — both when making an arrest and, equally, when deciding not to arrest.