1 APHC010346582026 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] MONDAY, THE 20th DAY OF JULY 2026 PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 5577/2026 Between: 1. GCKC PROJECTS AND WORKS PVT LTD, CORPORATE OFFICE AT 24, MISSION COMPOUND AJMER ROAD. JAIPUR-302001.REP. BY ITS AUTHORISED REPRESENTATIVEASHOK KUMAR, S/O. ROOPCHAND SAMDARIA,AGED 58 YEARS, OCC DIRECTOR. ...PETITIONER/ACCUSED AND 1. THE STATE OF ANDHRA PRADESH, rep. by its Public Prosecutor,High Court of Andhra Pradesh, Amaravatithrough the Station House Officer,Amaravathi P.S., Palnadu District. ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused: 1. B JAYA PRABHAKARA RAO Counsel for the Respondent/complainant: 1. PUBLIC PROSECUTOR The Court made the following: ORDER: The Criminal Petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.,’)/Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) seeking to 2 grant pre-arrest bail to the Petitioner/Accused in Crime No.263 of 2024 of Amaravathi Police Station, Palnadu District registered for the alleged offences punishable under Sections 420, 403, 406 and 379 of the Indian Penal Code, 1860 (for brevity, ‘the I.P.C.,’ and Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (for brevity, ‘the MMDAR Act’). 2. Heard the learned Counsel for the Petitioner and the learned Assistant Public Prosecutor. Perused the record. 3. Sri Veera Reddy, learned Senior Counsel appearing for Mr.B.Jaya Prabhakara Rao, learned counsel for the Petitioner, submits that all the alleged offences are punishable with imprisonment for a term below seven (07) years. 4. Ms.P.Akhila Naidu, the learned Assistant Public Prosecutor, submits that the provisions of Section 21(4) of ‘the MMDAR Act’ are punishable with imprisonment up to five (05) years; however, since the punishment is also below seven (07) years, the same falls within the ambit of Section 35(3) of ‘the BNSS’. 5. Since all the alleged offences, including the one under Section 21(4) of ‘the MMDAR Act’, are punishable below seven (07) years, if the Investigating Officer adheres to the legislative mandate under Section 35(3) of ‘the BNSS’, there is no question of arresting the Petitioner. Therefore, the apprehension of arrest entertained by the Petitioner is misplaced, in view of the judgments of 3 the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar1 and Md.Asfak Alam v. the State of Jharkhand2. 6. Further, the Hon’ble Supreme Court, in Satender Kumar Antil v. Central Bureau of Investigation3, wherein at paragraph No.33, it is held as under: 33. On the basis of the interpretation given by us, we conclude as follows: a. An arrest by a police officer is a mere statutory discretion which facilitates him to conduct proper investigation, in the form of collection of evidence and, therefore, shall not be termed as mandatory. b. Consequently, the police officer shall ask himself the question as to whether an arrest is a necessity or not, before undertaking the said exercise. c. For effecting an arrest, qua an offence punishable with imprisonment up to 7 years, the mandate of Section 35(1)(b)(i) of the BNSS, 2023 along with any one of the conditions mentioned in Section 35(1)(b)(ii) of the BNSS, 2023 must be in existence. d. A notice under Section 35(3) of the BNSS, 2023 to an accused or any individual concerned, qua offences punishable with imprisonment up to 7 years, is the rule. e. Even if the circumstances warranting an arrest of a person are available in terms of the conditions mentioned under Section 35(1)(b) of the BNSS, 2023, the arrest shall not be undertaken, unless it absolutely warranted. f. Power of arrest under Section 35(6) read with Section 35(1)(b) of the BNSS, 2023, pursuant to a notice issued under Section 35(3) of the BNSS, 2023 is not a matter of routine, but an exception, and the police officer is expected to be circumspect and slow in exercising the said power. 7. Furthermore, in this regard, it is apposite to mention the Hon’ble Apex Court in Arnesh Kumar supra, 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 1(2014) 8 SCC 273 2(2023) 8 SCC 632 3 Special Leave Petition (Crl.) No.5191 of 2021, dated 15.01.2026 4 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. 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 supra, which also reiterated the guidelines laid down in the case of Arnesh Kumar. 9. In the light of the law laid down in the case of Satender Kumar Antil, 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 5 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 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 Satender Kumar Antil, Arnesh Kumar and MD. Asfak Alam. If it is noticed in the course of investigation that the Petitioner has committed any offence which is punishable with imprisonment beyond seven years, the Investigating Officer is at liberty to proceed in accordance with law. As a sequel, Miscellaneous petitions, if any pending, shall stand closed. _________________________ DR. Y. LAKSHMANA RAO, J Date: 20.07.2026 PRA Whether the order is: Speaking Yes/No / Reasoned Yes/No Reportable Yes/No / Non-Reportable Yes/No 6 39 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION No.5577 of 2026 Date: 20.07.2026 PRA