Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 35(3) [Corresponding to Section 41-A of Cr.P.C.] — Indian Penal Code, 1860 — Sections 420, 34 — Cheating — Pre-arrest bail — Guidelines for arrest and investigation — Applicability of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and Md. Asfak Alam v. State of Jharkhand, (2023) 8 SCC 632 — Directions reiterated.
Nature of offence: Allegation that accused collected ₹15,00,000/- from de facto complainant on the pretext of providing employment, failed to provide job or refund amount — offence punishable under Sections 420, 34 IPC.
Held:
Offence alleged against the petitioner-accused No.2 is punishable with imprisonment for less than seven years. In such category of offences, the Investigating Officer is legally bound to follow the procedure prescribed under Sections 41 and 41-A of the Cr.P.C. (now Sections 35 and 35(3) of BNSS, 2023).
The Supreme Court in Arnesh Kumar v. State of Bihar laid down detailed directions for arrest and detention, emphasizing that police officers should not arrest accused unnecessarily and Magistrates should not authorize detention mechanically. Those directions apply not only to cases under Section 498-A IPC but also to all offences punishable with imprisonment up to seven years.
The same principles were reiterated in Md. Asfak Alam v. State of Jharkhand.
Accordingly, the petition under Section 482 BNSS seeking pre-arrest bail is disposed of with a direction to the Investigating Officer to comply with Section 35(3) BNSS / 41-A Cr.P.C. and to strictly follow the guidelines issued in Arnesh Kumar and Md. Asfak Alam. The petitioner shall extend full cooperation in investigation.
Held that : Criminal Petition disposed of with directions to Investigating Officer to comply with Section 35(3) BNSS / 41-A Cr.P.C. and follow law laid down in Arnesh Kumar and Md. Asfak Alam.
APHC010520962025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
(Special Original Jurisdiction)
[3521]
FRIDAY, THE TENTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO
CRIMINAL PETITION NO: 10202/2025
Between:
1. GUNJI SRINIVASA RAO, S/O GUNJI ANKAMMA, AGEDABOUT 35
YEARS, R/O H.NO. 2-44, BUDAVADA PRAKASAM DISTRICT.
...PETITIONER/ACCUSED
AND
1. THE STATE OF ANDHRA PRADESH, THROUGH S.H.O.PONNURU
TOWN POLICE STATION, GUNTUR DISTRICT,REP. BY ITS PUBLIC
PROSECUTOR, HIGH COURT,AMARAVATI.
2. KONDABOLU HARISH, S/O.SUBBA RAO,AGED ABOUT 26 YEARS,
D.NO.14-6-31 ID,NETHAJI NAGAR, 5TH LINE, PONNUR, GUNTUR
DISTRICT.
...RESPONDENT/COMPLAINANT(S):
Counsel for the Petitioner/accused:
1.V BABY RANI
Counsel for the Respondent/complainant(S):
1.PUBLIC PROSECUTOR
The Court made the following:
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ORDER:
The Criminal Petition has been filed under Section 482 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) by the petitioneraccused No. 2 for granting of pre-arrest bail in connection with Crime No.130
of 2025 of Ponnur Town Police Station, Guntur District, registered for the
alleged offence punishable under Section 420 read with Section 34 of the
Indian Penal Code.
2. The case of the prosecution is that between 15-07-2023 and 01-01-
2024, the accused collected an amount of Rs.15,00,000/- from de facto
complainant on the pretext of providing job to him. Later, the accused neither
provided job nor returned his amount and thus cheated de facto complainant.
3. Smt. Vemula Baby Rani, learned counsel for the petitioner, submits that
the petitioner has not committed any offence; he was falsely implicated in this
case; he is sole breadwinner of his family; he is ready to abide any conditions
to be imposed by this Court, and it is urged to grant pre-arrest bail to the
petitioner.
4. Per contra, Ms. P.Akila Naidu, learned Assistant Public Prosecutor,
opposed in granting of pre-arrest bail stating that investigation is not
completed; if the petitioner is enlarged on pre-arrest bail, he would not be
available for the investigation and he will repeat the same offence; and it is
urged to dismiss the bail application.
2025:APHC:42594
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5. Heard learned counsel for the petitioner and learned Assistant Public
Prosecutor representing the State. Perused the record.
6. As seen from the record, the offence levelled against the petitioneraccused No. 2 is punishable with imprisonment for less than seven (07) years.
7. In this regard, it is apposite to mention the judgment of the Hon’ble Apex
Court in Arnesh Kumar v. State of Bihar1
, wherein a detailed guidelines
were issued at Para Nos.11 and 12, for arresting a person, which are being
reproduced herein below:
11.Our endeavor in this judgment is to ensure that police officers do
not arrest accused unnecessarily and Magistrate do not authorize
detention casually and mechanically. In order to ensure what we have
observed above, we give the following direction:
a).All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest
under the parameters laid down above flowing from Section 41 Code
of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.’);
b)All police officers be provided with a check list containing specified
sub- clauses under Section 41(1)(b)(ii);
c) The police officer shall forward the check list duly filed and furnish
the reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;
d) The Magistrate while authorizing detention of the accused shall
peruse the report furnished by the police officer in terms aforesaid
and only after recording its satisfaction, the Magistrate will authorize
detention;
e) The decision not to arrest an accused, be forwarded to the
Magistrate within two weeks from the date of the institution of the
case with a copy to the Magistrate which may be extended by the
Superintendent of police of the district for the reasons to be recorded
in writing;
f) Notice of appearance in terms of Section 41-A of Cr.P.C be served
on the accused within two weeks from the date of institution of the
case, which may be extended by the Superintendent of Police of the
District for the reasons to be recorded in writing;
g) Failure to comply with the directions aforesaid shall apart from
rendering the police officers concerned liable for departmental action,
he shall also be liable to be punished for contempt of court to be
instituted before High Court having territorial jurisdiction.
1
(2014) 8 SCC 273
2025:APHC:42594
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h) Authorizing detention without recording reasons as aforesaid by
the judicial Magistrate concerned shall be liable for departmental
action by the appropriate High Court.
12.We hasten to add that the directions aforesaid shall not only apply
to the cases under Section 498-A of the I.P.C. or Section 4 of the
Dowry Prohibition Act, the case in hand, but also such cases where
offence is punishable with imprisonment for a term which may be less
than seven years or which may extend to seven years; whether with
or without fine.
8. The similar view is also reiterated by the Hon'ble Apex Court in Md.
Asfak Alam v. State of Jharkhand2
, which also reiterated the guidelines laid
down in the case of Arnesh Kumar.
9. In the light of the law laid down in the cases of Arnesh Kumar and Md.
Asfak Alam, the investigating officer is under legal obligation to proceed in
accordance with law but he shall follow the procedure prescribed under
Sections 41 and 41 (A) of ‘the Cr.P.C.’ (now Sections 35 and 35 (3) of ‘the
B.N.S.S.2023'). The petitioner shall oblige to render his fullest cooperation in
the ongoing investigation.
10. In the result, the Criminal Petition is disposed of directing the
Investigating Officer to comply with Section 35 (3) of ‘the BNSS’/41-A of ‘the
Cr.P.C.,’ and to strictly follow the directions issued in the cases of Arnesh
Kumar and Md. Asfak Alam.
_________________________
DR. Y. LAKSHMANA RAO, J
Date: 10.10.2025
JSK
2
(2023) 8 SCC 632
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THE HONOURABLE DR. JUSTICE Y. LAKSHMANA RAO
CRIMINAL PETITION No. 10202 OF 2025
Date: 10.10.2025
JSK
2025:APHC:42594
