Court says notice under Section 35(3) BNSS must come before coercive action, not after custody; directs DGP to issue binding circulars to prevent mechanical arrests in speech-related cases
The Karnataka High Court on Thursday came down heavily on police action in a case arising from a Facebook post, holding that criminal law cannot be invoked mechanically to curtail personal liberty, especially in matters involving speech and social media expression.
Justice M. Nagaprasanna, hearing a writ petition challenging Crime No. 573/2026 registered by Whitefield Police Station, observed that the petitioner was allegedly taken from Udupi to Bengaluru by police personnel and a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 was served only after he had already been brought under police control. The Court said such a notice cannot be reduced to a “ceremonial paper” handed over after liberty has already been curtailed.
The case stemmed from a Facebook post in which the petitioner reportedly described the cancellation of comedian Kunal Kamra’s show as a “victory for Hindu unity.” The police registered the case suo motu under Sections 217 and 353(2) of the Bharatiya Nyaya Sanhita, 2023. The Court noted that no private complainant had come forward claiming injury, and expressed concern that a police constable himself appeared to have treated the post as an offence, blurring the line between informant and investigator.
Relying on Supreme Court rulings in Arnesh Kumar, Joginder Kumar, and Satender Kumar Antil, as well as the Telangana High Court’s guidelines in Nalla Balu, the Court reiterated that arrest is discretionary, not mandatory, and that police must first satisfy statutory conditions before curtailing liberty. The Court emphasized that once police choose to proceed under Section 35(3) BNSS by issuing notice, they must remain faithful to that route and cannot resort to arrest at whim unless fresh reasons arise in accordance with law.
The Court also stressed that in cases involving speech, expression, or social media posts, police must apply a higher threshold, verify locus standi, conduct preliminary inquiry where necessary, and protect legitimate political speech under Article 19(1)(a) of the Constitution. It warned that constitutional safeguards are not mere suggestions but binding commands of law.
Taking note of repeated complaints regarding Whitefield Police Station’s conduct in similar matters, the Court directed the Director General and Inspector General of Police to issue binding circulars or guidelines to all police stations across Karnataka. These directions must ensure strict compliance with arrest jurisprudence and the constitutional protection of personal liberty. The Court also said deliberate or reckless violations could invite departmental proceedings and even exemplary costs.
The Registry was directed to communicate the order to the Home Department and the State police chief, and compliance was sought to be reported by September 25, 2026. The interim stay on further investigation in the case, insofar as the petitioner is concerned, was extended.
Bottom Line :
Social media post - Police cannot mechanically invoke criminal law or curtail liberty in cases arising out of speech without complying with safeguards under Section 35 of BNSS, 2023 and the guidelines approved in Nalla Balu - Notice under Section 35(3) BNSS must precede coercive action and cannot be served after the person is already brought under police control - DGP directed to issue binding circulars to all police stations for strict compliance with arrest jurisprudence and protection of personal liberty.
Statutory provision(s): Article 19(1)(a), Article 21, Section 35 BNSS, 2023, Section 217 BNS, 2023, Section 353(2) BNS, 2023, Section 176(1) BNSS, 2023, Section 174(2) BNSS, 2023
Sri Mohan Gowda v. State of Karnataka, (Karnataka) : Law Finder Doc id # 2987119
