Devarakonda Subba Rao Vs The State of Andhra Pradesh

THE STATE OF ANDHRA PRADESH, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGHCOURT OF ANDHRA PRADESH, HIGH COURT BUILDINGS AT NELAPADU, GUNTURDISTRICT, ANDHRA PRADESH THROUGH SHO, MACHAVARAM POLICE STATION,MACHAVARAM, NTR DISTRICT

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DEVARAKONDA PRASAD, , S/O. GURAVAIAH, AGED 61 YEARS, R/O. FLAT NO. 5010,2 FLOOR, JMD SAPHIRE APARTMENTS, OPPOSITE LAYOLA AUDITORIUM,VENKATESWARA NAGAR, VIJAYAWADA.

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...RESPONDENT/COMPLAINANT(S):

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Counsel for the Petitioner/accused:

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CHETAN PONNURU

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Counsel for the Respondent/complainant(S):

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PUBLIC PROSECUTOR

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2

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Dr. YLR, J Crl.P.No.1320 of 2026 Dated 18.02.2026

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The Court made the following:

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ORDER :

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The Criminal Petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity 8the Cr.P.C.,9)/Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity 8the BNSS9) seeking to quash proceedings against petitioners/Accused in Cr.No.09 of 2026 on the file of the Machavaram Police Station, NTR District, registered for the alleged offence punishable under Sections 316(2), 318(4) of the Bharatiya Nyaya Sanhita, 2023 (for brevity 8the BNS9).

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Heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor. Perused the record.

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The learned counsel for the petitioner submits that respondent No.2 has lodged a complaint, which has been registered as Cr.No.09 of 2026 for the alleged offences punishable under Sections 316(2) and 318(4) of 8the BNS9. The allegations pertain to cheating and criminal breach of trust.

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Cheating and criminal breach of trust cannot go together, as held by the Hon9ble Apex Court in Delhi Race Club (1940) Ltd. v. State of U.P.,¹ , and Arshad Neyaz Khan v. State of Jharkhand² .

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As seen from the record, the alleged offences levelled against the petitioner/Accused are punishable with imprisonment for less than seven (07)

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1 (2024) 10 SCC 690

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2 2025 SCC OnLine SC 2058

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3

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Dr. YLR, J Crl.P.No.1320 of 2026 Dated 18.02.2026

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years. However, the learned counsel for the petitioners has confined his relief to Section 35(3) of 8the BNSS9.

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However, on a perusal of the FIR and the material placed on record, there is a prima facie case to consider the request of the petitioner under Section 528 of 8the BNSS9. Nonetheless, the circumstances of the case necessitate a thorough and comprehensive investigation. The voice of the de-facto complainant cannot be stifled at the threshold.

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The Hon9ble Supreme Court, in Practical Solutions Inc. v. State of Telangana, Criminal Appeal No.353 of 2026 (arising out of SLP (Criminal) Diary No.953 of 2026), on dated 19.01.2026 has held as follows:

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<We also take notice of the fact that the petition before the High Court was to quash the FIR. In a petition where quashing of the FIR is prayed for, the High Court should not have passed an order directing the Investigating Officer to comply with Section 41-A of the Code of Criminal Procedure, 1973, because it indirectly amounts to granting a relief which the High Court could have considered only if a prima facie case for quashing of the FIR is made out.=

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Further, the Hon9ble Supreme Court, in Satender Kumar Antil v.

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Central Bureau of Investigation³ , has held at paragraph No.33 as under:

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33. On the basis of the interpretation given by us, we conclude as follows:

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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.

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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.

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3 Special Leave Petition (Crl.) No.5191 of 2021, dated 15.01.2026

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Dr. YLR, J Crl.P.No.1320 of 2026 Dated 18.02.2026

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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.

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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.

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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.

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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.

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Furthermore, in this regard, it is apposite to mention the Hon9ble Apex

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Court in Arnesh Kumar v. State of Bihar⁴ , wherein a detailed guidelines

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were issued at Para Nos.11 and 12, for arresting a person, which are being reproduced herein below:-

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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:

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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.?);

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b) All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

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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;

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4 (2014) 8 SCC 273

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Dr. YLR, J Crl.P.No.1320 of 2026 Dated 18.02.2026

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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;

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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;

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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;

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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.

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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.

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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.

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The similar view is also reiterated by the Hon'ble Apex Court in Md. Asfak Alam v. the State of Jharkhand⁵ , which also reiterated the guidelines laid down in the case of Arnesh Kumar .

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In the light of the law laid down in the case 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 8the Cr.P.C.,9 (now Sections 35 and 35(3) of 8the

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5 (2023) 8 SCC 632

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Dr. YLR, J Crl.P.No.1320 of 2026 Dated 18.02.2026

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B.N.S.S.,9 2023). The petitioner is obliged to render his fullest cooperation in

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the ongoing investigation.

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In the result, the Criminal Petition is disposed of directing the Investigating Officer to comply with Section 35(3) of 8the BNSS9/41-A of 8the Cr.P.C.,9 and to strictly follow the directions issued in the cases of Satender Kumar Antil , Arnesh Kumar and MD. Asfak Alam .

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As a sequel, Miscellaneous petitions, if any pending, shall stand closed.

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_________________________ DR. Y. LAKSHMANA RAO, J

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Date: 18.02.2026 RSI

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Dr. YLR, J Crl.P.No.1320 of 2026 Dated 18.02.2026

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