THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA CRIMINAL PETITION No.13685 OF 2025

ORDER:

This Criminal Petition is filed by the petitioners-accused Nos.1 and 2 seeking to quash the proceedings against them in C.C.No.8808 of 2025 on the file of learned XII Additional Chief Judicial Magistrate, Hyderabad, at Nampally, registered for the offences under Sections 115(2) and 351(2) of the Bharatiya Nyaya Sanhita, 2023 (for short, ‘BNS’).

2. Heard Sri K.S.S. Ayyubi, learned counsel for the petitioners and Ms. S. Madhavi, learned Assistant Public Prosecutor for respondent No.1-State.

3. Learned counsel for the petitioners submitted that the police failed to comply with the Rules and Regulations as per the Bharatiya Nagarik Suraksha Sanhita (for short, ‘BNSS’). He further submitted that the petitioners are alleged to have committed the offences under Sections 115(2) and 351(2) of BNS, which are non-cognizable offences. Hence, the police ought to have followed the procedure of referring the informant to the Magistrate and obtaining permission from the Magistrate before taking up the investigation under Section 174 of BNSS, but they failed to do so. He further relied upon a decision of the High Court of Karnataka in Gurushantaiah and another v. The State of Karnataka, Crl.P.No.8224 of 2024, dated 02.09.2024 and submitted that the procedure followed by the police in the present case is in utter violation of the existing Rules. He, therefore, prayed to quash the proceedings in the present C.C. against the petitioners herein.

4. Learned Assistant Public Prosecutor submitted that the police have acted very much in accordance with law and they have made the G.D. entry. She further submitted that the police have obtained permission of the jurisdictional Magistrate and only then they have proceeded with the investigation and therefore, Gurushantaiah’s case (supra) cited by the learned counsel for the petitioners does not apply to the present case. She, therefore, prayed to dismiss the Criminal Petition.

5. Perused the record.

6. The petitioners herein are facing allegations under Sections 115(2) and 351(2) of BNS. The contention of the petitioners’ counsel is that the police failed to follow the procedure laid down under BNSS and that the police ought to have followed the

procedure laid down under Section 174 of BNSS. The said Section is extracted hereunder for the sake of reference:

“174 - Information as to non-cognizable cases and investigation of such cases.

(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf, and,—

(i) refer the informant to the Magistrate;

(ii) forward the daily diary report of all such cases fortnightly to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.”

A perusal of the record reveals that the complaint was given by the de facto complainant on 29.06.2025 and the G.D. entry was made on 30.06.2025 and further, a requisition was submitted to the Magistrate concerned, pursuant to which the Magistrate has passed an order on 16.07.2025 according permission to the police Nampally to register a case under Sections 115(2) and 351(2) of BNS on the complaint of Sri Mohd. Aijaz, dated 29.06.2025, and subsequently, the present F.I