THE HON’BLE SRI JUSTICE J. SREENIVAS RAO WRIT PETITION No.15103 of 2025

ORDER:

This writ petition is filed for the following relief:

“……to issue an order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondent No.5 in non-following the provisions of THE Bharatiya Nagarik Suraksha Sanhita 2023 vide Section 35 (3) of BNSS Act in Crime No.24 of 2025 for the offences under Section 189 (3), 61 (2), 224, 329(4), 331(5), 308(5) r/w 190 BNS Sec-3 of Public Property Damage Act on the file of Chinnagudur Police Station Mahabubabad District and without following the direction of Honourable Apex Court in the Arnesh kumar Vs State of Bihar and trying to arrest the Petitioner is illegal arbitrary unconstitutional and violation of Articles 14, 15, 21 and 300A of Constitution of India and also violation of Principles of Natural Justice and consequently direct the Respondent No.5 to follow the provisions of The Bharatiya Nagarik Suraksha Sanhita, 2023 vide Section 35 (3) of BNSS Act and to follow the directions of the Honourable Apex Court in Arnesh Kumar V/s State of Bihar and issue the Notice under Section 41-A Cr.P.C or under Section 35 (3) of BNSS Act in Crime No.24 of 2025 on the file of Police Station Chinnagudur and pass……”

2. Heard Sri Rapolu Bhasker, learned counsel for the petitioner, and Sri R. Laxmikanth Reddy, the learned Assistant Government Pleader for Home appearing on behalf of respondent Nos.1 to 5.

3. With the consent of the learned counsel for the parties, the writ petition is disposed of at the stage of admission.

4. Learned counsel for the petitioner submits that the petitioner has not committed any offences much less the offences alleged in Crime No.24 of 2025 of Chinnagudur Police Station registered for the offences under sections 189(3), 61(2), 224, 329(4), 331(5), 308(5), r/w 190 of Bharatiya Nyaya Sanhita (for short ‘BNS’) and Section 3 of the Prevention of Damage to Public Property Act, 1984 and he was falsely implicated in the aforesaid crime as accused No.5. Even according to the allegations made in the complaint, the ingredients of Section 308(5) of BNS, do not attract and the other offences levelled against the petitioner are punishable with an imprisonment of below seven years. The respondent No.5 with an intention to arrest the accused, while investigating the case itself included the offence under Section 308(5) of BNS to avoid the procedure as contemplated under Section 35(3) of BNSS and also guidelines issued by the Apex Court in Arnesh Kumar Vs. State of Bihar1. The petitioner is not having any criminal antecedents and he is ready and willing to cooperate with the investigation and also abide by the conditions that may be imposed by this Court.

5. Per contra, learned Assistant Government Pleader for Home appearing for respondent Nos.1 to 5 submits that there are specific allegations levelled against the petitioner and the investigation is under progress. At this stage, the petitioner is not entitled the relief as sought in the writ petition.

6. Having considered the rival submissions made by the respective parties and after pursual of the material available on record, this Court is of prima facie view that the allegations made in the complaint do not attract the offence under Section 308(5) of BNS against the petitioner. Even according to the learned Assistant Government Pleader, accused

1(2014) 8 SCC 273

No.1 has already been arrested and the petitioner is not having any criminal antecedents.

7. Taking into consideration the facts and circumstances of the case, without going in to the merits of the case, this Court deems it appropriate to direct the petitioner to appear before the Investigating Officer on or before 20.05.2025. On such appearance of the petitioner, the Investigating Officer is directed to scrupulously follow the procedure as contemplated under Section 41-A of the Criminal Procedure Code, 1973 (Cr.P.C.)/Section 35(3) of BNS and the guidelines issu