THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 10444 of 2025 ORDER: The Criminal Petition has been filed under Section 482 of the BharatiyaNagarikSurakshaSanhita, 20231 by the Petitioner/Accused for grant of pre-arrest bail in connection with Crime No.183 of 2025 on the file of BhavanipuramPolice Station, Vijayawada City, NTR District, registered for the alleged offences punishable under Sections420, 403, and 409 of the Indian Penal Code, 18602 on the allegation that the Petitioner/Accused involved in cheating and criminal breach of trust. 2. Heard the learned counsel for the petitioner and learned Assistant Public Prosecutor representing the State. Perused the record. 3. As seen from the record, the allegation against the petitioner is that he had misappropriated nearly 11 tonnes of tea bags. The learned Assistant Public Prosecutor brought to notice of this Court an e-mail sent by the petitioner on 19.03.2024 admitting the guilty, but he assigned reason that the stocks were sent to lose market with commission of Rs.5 per Kg, but unfortunately for the last six months the persons, who took tea bags, had not responded properly. Therefore, the petitioner could not bill the amount. The petitioner is a permanent resident of Guntupalle, Vijayawada Rural, Krishna District. He has got fixed abode. The Hon’ble Apex Court in Delhi Race Club (1940) Ltd v. State of Uttar Pradesh3held that the offence of criminal breach of trust and cheating cannot coexist simultaneously. The petitioner is neither banker nor public servant nor agent of the de-facto complainant. Therefore, Section 409 of ‘the I.P.C.,’/Section 316 of ‘the BNS.,’ would not be applicable. 1the BNSS 2the I.P.C 3 Crl.A.No.3114 of 2024 dated 23.08.2025 2 Dr.YLR, J Crl.P.No.10444 of 2025 Dated 17.09.2025 So far, four witnesses are examined. The amount yet to be recovered. Baring Section 409 of ‘the I.P.C.,’/316 of ‘the BNS.,’the rest of the Sections alleged against the petitioner are punishable below seven (07) years of imprisonment. 4. In this regard, it is apposite to mention the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar4,issued detailed guidelines 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 4(2014) 8 SCC 273 3 Dr.YLR, J Crl.P.No.10444 of 2025 Dated 17.09.2025 for contempt of court to be instituted before High Court having territorial jurisdiction. 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. 5. The similar view is also reiterated by theHon'ble Apex Court in Md. AsfakAlam v. State of Jharkhand5, which also reiterated the guidelines laid down in the case of Arnesh Kumar. 6. In the light of the law laid down in the case of Arnesh Kumar and Md. AsfakAlam, 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 is obliged to render his fullest cooperation in the ongoing investigation. 7. In the result, the Criminal Petition is disposed of directing the Investigating Officer to comply with Section 35(3) of ‘the BNS’/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: 17.09.2025 KMS 5(2023) 8 SCC 632 4 Dr.YLR, J Crl.P.No.10444 of 2025 Dated 17.09.2025 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION No.9432 of 2025 Date:17.09.2025 KMS