Writ Petition No. 9464 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:13350 WP No. 9464 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR WRIT PETITION NO. 9464 OF 2025 (GM-RES) BETWEEN: 1. SMT. PARVATHI KANCHAN AGED ABOUT 48 YEARS, W/O BHASKAR SALIAN R/A 'AMMA' PAVANJEGUDDE NEAR SARVA YUVAKA MANDALA BADANIDIYURU VILLAGE UDUPI-576 106.
Legal Reasoning
2. SMT. LEELA SALIAN AGED ABOUT 52 YEARS W/O RAGHU SUVARNA R/A 'HARSHINI' SALMARA, KOODAVOORU VILLAGE UDUPI -576108. (BY SMT. URMILA PULLAT, ADVOCATE) AND: 1. THE STATE OF KARNATAKA BY MALPE PS REPRESENTED BY THE SPP HIGH COURT OF KARNATAKA BENGALURU-560001. 2. THE SUPERINTENDENT OF PRISONS MANGALURU WOMEN'S JAIL MANGALORE DISTRICT PRISONS Digitally signed by B K MAHENDRAKUMAR Location: High Court of Karnataka …PETITIONERS - 2 - NC: 2025:KHC:13350 WP No. 9464 of 2025 JAIL ROAD, KODEHALLI MANGALURU -575 002. 3. SMT. LAKKI BAYI AGED ABOUT 36 YEARS W/O RAVI KOMARANAHALLI THANDA HAVINAHADAGALI TALUK BELLARY -583219 PRESENTLY AT: HANUMANA NAGAR MALPE KOLA, KODAVOOR VILLAGE UDUPI-576108. …RESPONDENTS (BY SRI. LAKSHMAN B., HCGP FOR R1) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 528 OF BHARATIYA NAGARIKA SURAKSHA SANHITA 2023 PRAYING TO DECLARE THE ARREST AND REMAND OF PETITIONER IN CR.NO. 32/2025 OF THE R1 MALPE PS (FIR PRODUCED AT ANNEXURE-A), PENDING ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE AND MACT, UDUPI FOR THE OFFENCES PUNISHABLE UNDER SECTION 189(2) 191(2), 126(2), 127(2), 74, 115(2), 352, 351(2) 190 OF THE BHARATHIYA NYAYA SANHITA (BNS), 2023 AND 3(1)(R), 3(1)(S), 3(2)(V-A) OF SC AND ST (PREVENTION OR ATROCITIES) ACT, 1989 AS ILLEGAL AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR ORAL ORDER The petitioners, who were arrested in Crime No.32/2025 for the offences punishable under Sections 189(2), 191(2), 126(2), 127(2), 74, 115(2), 352, 351(2), 190 of BNS, 2023, and Sections 3(1)(r), 3(1)(s), 3(2)(v-a) of SC & ST (Prevention of Atrocities) Act, 1989, are before this Court seeking relief. - 3 - NC: 2025:KHC:13350 WP No. 9464 of 2025 2. The offences alleged against the petitioners are punishable with imprisonment of less than seven years. The petitioners were arrested on 20.3.2025. 3. The primary contention of the petitioners is that the arrest stands vitiated for violation of Article 22(1) of the Constitution of India, since the grounds of arrest were not served on the petitioners at the time of arrest. 4. The notice under Section 35(3) of BNSS, 2023 was served on the petitioners, and following the notice, the petitioners were appeared before the police. The police thereafter arrested the petitioners stating that the petitioners admitted to the guilt; however, no grounds are recorded necessitating the arrest of the petitioners. 5. The Hon'ble Apex Court in the case of Arnesh Kumar -vs- State of Bihar and anothers - (2014) 8 SCC 273 has ruled as follows: "7.3 In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes - 4 - NC: 2025:KHC:13350 WP No. 9464 of 2025 envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC." 6. A Co-ordinate Bench of this Court in the case of Noufal M K -vs- State of Karnataka and anr. in WP No.6778/2025 following the decisions of the Apex Court in the cases of Pankaj Bansal -vs- Union of India- (2024) 7 SCC 576, and Prabir Purkayastha -vs- State (NCT of Delhi)- (2024) 8 SCC 254, and Vihaan Kumar -vs-State of Haryana- 2025 INSC 162, released the petitioner therein, stating that arrest stands vitiated for non-disclosure of the grounds of arrest. 7. In the instant case, a perusal of the arrest memo indicates merely an admission by the petitioners to the guilt of the alleged offences. The petitioners following the notice of appearance issued under Section 35(3) of BNSS, 2023 had appeared before the concerned authority, but thereafter, were arrested . The arrest memo does not disclose any instance of non-compliance by the petitioner with the said notice of appearance and therefore, the arrest is violative of the provisions of Section 35(5) of BNSS, 2023. 8. Furthermore, the perusal of the remand order also discloses that the learned Magistrate has not applied his mind to the remand application before passing an order remanding the petitioners to the judicial custody 9. The Apex Court in the case of Arnesh Kumar (supra) has observed as follows: - 5 - NC: 2025:KHC:13350 WP No. 9464 of 2025 "8.2 Before a Magistrate authorizes detention under Section 167 Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effect by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the fact, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authroise the detention of an accused." 10. As such, the purported grounds of arrest are not in conformity with Section 47 of BNSS, 2023. Therefore the arrest of the petitioners stands vitiated for non-compliance of Article 22(1) of Constitution of India and Section 35(5) of BNSS, 2023. 11. Accordingly, the petition is allowed. The respondent No.2 is directed to release the petitioners forthwith in Crime No.32/2025 registered by the Malpe P.S, subject to following conditions: a) The petitioners/accused Nos.5 and 6 shall furnish indemnity bond for a sum of Rs.One lakh with one surety for the likesum each to the satisfaction of the jurisdictional Court. b) They shall appear before the Investigating Officer as and when required. c) They shall not threaten or allure the prosecution witnesses in whatsoever manner. d) They shall not get involved in similar offences. - 6 - NC: 2025:KHC:13350 WP No. 9464 of 2025 e) They shall not leave the territorial limits of the police station without prior permission of the Investigating Officer. 12. The Mangalore Womens' Jail, District Jail, Mangalore, is hereby directed to release the petitioners No.1 and 2 forthwith in Crime No.32/2025 registered by the Malpe Police Station without any delay, and immediately upon a receipt of copy of this order, if they are not required for any other cases, if any. 13. The Registry is directed to communicate this order to the Jail Authorities forthwith without any delay through e-mail and telephonically. 14. The petitioners shall not celebrate their release in the prison, in any manner. Hand delivery ordered. Sd/- (HEMANT CHANDANGOUDAR) JUDGE BKM List No.: 2 Sl No.: 7