The High Court of Karnataka has imposed an exemplary cost of ₹3 lakh on a sub-inspector (SI) of police and his two superior officers — an assistant commissioner of police (ACP) and a deputy commissioner of police (DCP) — for illegally arresting a man in an alleged case of fraud in the execution of a will, essentially civil in nature having a history of over three decades and related to a pending civil suit.
The court penalised the police after noting that the petitioner, K.N. Mohan Reddy, an attesting witness to the disputed will and arraigned as accused No. 2 under Sections 61, 338 and 340(2) of the Bharatiya Nyaya Sanhita, was arrested nearly 48 hours before the deadline set by the investigating officer for him to appear before the police for investigation.
No ambiguity
“The sequence of events leaves little room for ambiguity. When the police themselves commanded the petitioner to appear on August 27, at 11 a.m., the law necessarily afforded him until that hour to demonstrate compliance. Disobedience cannot be presumed before the command becomes enforceable. Yet, in the case at hand, the petitioner was arrested before the clock could even begin to test his obedience,” observed Justice M. Nagaprasanna.
The court observed Sunil Kumar K.R, a sub-inspector attached to the Whitefield Police Station in Bengaluru, had issued a notice under Section 35(3) of the BNSS on August 25, directing the petitioner to appear before him on August 27 at 11 a.m. However, instead of allowing the petitioner an opportunity to comply, the police arrested him from his residence on the very day the notice was issued.
“This turns the statutory safeguard on its head,” the court said while observing that “the notice under Section 35(3), which ought to have operated as a shield against unnecessary arrest, was rendered a mere piece of paper by the very authority that had issued it.”
Arrest not essential
Referring to the apex court’s judgments, the court said that arrest is not essential in every case even if there is disobedience of a notice issued under Section 35(3) of the BNSS. It observed that there was no occasion for the investigating officer in the present case even to form an opinion that the petitioner had failed to cooperate.
“Silence was the only answer” the sub-inspector had when he was personally summoned by the court and asked what compelling circumstance warranted the arrest, what supervening material had surfaced between the issuance of the notice and the arrest, whether there was any apprehension of absconding, destruction of evidence, intimidation of witnesses or obstruction of the investigation, or whether the action was taken at the behest of any superior officer, the court noted.
A higher officer cannot remain a silent spectator while a subordinate treats a statutory safeguard as dispensable paperwork and thereafter seeks shelter behind the individual act of the investigating officer, the court observed while imposing costs on the sub-inspector and on his superior officers.
The court made it clear that the costs should not be paid from the public exchequer, but would have to be borne personally by the three officers and paid to the petitioner from their own funds.
