Punith. P vs State By Basaveshwaranagara Police Represented By Government Pleader High Court Of Karnataka, Bangalore - 560001

S.R. Krishna Kumar, J

In this petition, petitioner seeks the following reliefs:

“(a) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction to quash the FIR & Complaint in Crime No.266/2025, filed by the 1st Respondent against the petitioner for offences punishable under Sections 316(2), 318(4), 351(2), 352 r/w Section 190 of BNS Act and Section 9 of KPID Act (Annexure-A), presently pending before the Prl. City Civil & Sessions Judge, Bengaluru.

(b) Issue a writ in the nature of certiorari declaring that the arrest of the petitioner / accused No.2 in Crime No.266/2025, for the offence punishable under Sections 316(2), 318(4), 351(2), 352 r/w Section 190 of BNS Act and Section 9 of KPID Act by the Basaveshwara Nagar Police is illegal without adhering to the rule of law as held by the Supreme Court reported in (2022) 10 SCC 51 any other appropriate writ, order or direction, presently pending before the Prl. City Civil and Sessions Judge, Bengaluru.

(c) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction to immediately release the petitioner / accused No.2 in Crime No.266/2025, for the offence punishable under Sections 316(2), 318(4), 351(2) r/w Section 190 of BNS Act and Section 9 of KPID Act filed by the Respondent No.1 (Annexure-A).

(d) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction to quash the entire proceedings on the file of Crime No.266/2025, pending before the Prl. City Civil & Sessions Judge at Bangalore, for the offences punishable under Sections 316(2), 318(4), 351(2), 352 r/w Section 190 of BNS Act and Section 9 of KPID Act, as against the petitioner herein.

(e) Grant such other relief that his Hon’ble Court may deem fit in the facts and circumstances of the case.”

Heard learned counsel for the petitioner and learned Additional SPP for the respondent and perused the material on record.

A perusal of the material on record will indicate that one Smt. Kusuma M.- complainant filed the instant complaint which is registered as FIR in Crime No.266/2025 dated 08.07.2025 at 9.45 a.m. against petitioner / accused No.2 and other persons for the alleged offences punishable under Sections 316(2), 318(4), 351(2), 352, 190 of BNS, 2023. In pursuance of the same, respondent – Police Authorities issued notice dated 08.07.2025 under Section 35(3) of BNSS to the petitioner.

The said notice reads as under:

As can be seen from the aforesaid notice issued under Section 35(3) of BNSS calls upon the petitioner – accused No.2 to appear before the respondent on the very same day even without specifying the time for his appearance. Interestingly, on the very same day i.e., 08.07.2025 at 5.00 p.m. the petitioner – accused No.2 was arrested as alleged in the remand application filed by the respondent.

A perusal of the Notice under Section 35(3) of BNSS, 2023 and other material on record is sufficient to come to the conclusion that pursuant to issuing the aforesaid notice under Section 35(3) of BNSS on 08.07.2025, the respondent would clearly not be entitled to cause the arrest of the petitioner at 5 p.m. on the very same day i.e., 08.07.2025 itself without following procedure prescribed under Sections 35(3), (4), (5) and (6) of BNSS Act, 2023.

In this context, learned Additional SPP on instructions would fairly submit that in the first instance, there was no necessity for the respondent to even issue the notice under Section 35(3) of BNSS, 2023 and having issued the said notice, it was necessary that the respondent ought to have specified the specific time for appearance and also provided sufficient and reasonable time for the petitioner to appear and comply with the said notice as held by the Hon’ble Apex Court in the cases of Arnesh Kumar vs. State of Bihar – (2014) 8 SCC 273, Satender Kumar Antil vs. CBI – (2022) 10 SCC 51 and Sri Tavaragi Rajashekhar Shiva Prasad Vs. The State of Karnataka and Ors – W.P.No.15125/2024 dated 19.07.2024. Learned Additional SPP also submits that in view of the aforesaid lacunae and arrest of the petitioner within six hours of registration of FIR and even lesser time gap from the time of issuance of Section 35(3) Notice, the impugned arrest of petitioner may be set aside.

In view of the aforesaid facts and circumstances of the case and submissions made by learned Additional SPP, I am of the considered opinion that the impugned arrest of petitioner by the respondent – Police Authorities is illegal and contrary to law and especially the provisions contained under Sections 35(3), (4), (5) and (6) of BNSS, 2023 and the judgments referred to supra and hence, the impugned arrest of petitioner – accused No.2 deserves to be quashed.

Learned counsel for the petitioner submits that the petitioner intends to file an application seeking bail / anticipatory bail before the Trial Court, which may be directed to be considered and disposed of the said application within a stipulated time frame.

In view of the aforesaid facts and circumstances, I deem it just and appropriate to partly allow the present petition to the limited / restricted extent of quashing the impugned arrest of petitioner – accused No.2 and by issuing certain directions in this regard.

In the result, I proceed to pass the following:

ORDER

i) The petition is hereby allowed-in-part..

ii) The impugned arrest of the petitioner – accused No.2 on 08.07.2025 pursuant to the FIR in Crime No.266/2025 is hereby quashed.

iii) The respondent – police and the concerned jail authorities are directed to release the petitioner – accused No.2, immediately, forthwith, without any delay.

iv) Liberty is reserved in favour of the petitioner to file the application for bail / anticipatory bail, which shall be considered by the Trial Court, which shall pass appropriate orders on the said application to be filed by the petitioner within a period of one week from the date of petitioner filing the application.

v) Respondent – Police Authorities are directed not to take precipitative / coercive steps against the petitioner nor arrest him for a period of ten days from today subject to the petitioner co-operating with the investigation, which is being conducted by the respondent – Police Authorities.

vi) Liberty is reserved in favour of petitioner to file fresh petition and also take recourse to such other remedies as available in law and including approaching this Court, subsequently, if occasion so arises.

Registry is directed to communicate this order to the 1st respondent – Police as well as the Jail Authorities forthwith without any delay both electronically and telephonically to enable immediate implementation of this order.

Hand delivery of this order is permitted.