THE HONOURABLE SMT. JUSTICE K. SUJANA CRIMINAL PETITION No.6333 of 2025

ORDER

This Criminal Petition is filed under Section 528 Bharatiya Nagarik Suraksha Sanhita (for short ‘BNSS’) by the learned Public Prosecutor seeking to set aside the order dated 25.09.2024 passed in Crl.M.P.No.4252 of 2024 by the learned IV Additional Sessions Judge, Hyderabad.

2. Heard Sri M. Vivekananda Reddy, learned Assistant Public Prosecutor appearing on behalf of petitioner and Sri T. Santosh Singh, learned counsel for respondent-accused No.12. 3. Learned Assistant Public Prosecutor submitted that respondent No.1 herein, who is arrayed as accused No.12, had filed a petition for anticipatory bail before the trial Court for the offences punishable under Sections 318(4), 319(2), and 338 read with Section 61 of the Bharatiya Nyaya Sanhita (for short, ‘BNS’) and Section 66(D) of the Information Technology Act (for short, ‘IT Act’). The trial Court dismissed the said petition and directed the Investigating Officer to adhere to the guidelines laid down by the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar, AIR 2014 SC 2756, by issuing notice under Section

35(3) of BNSS.

4. Learned Assistant Public Prosecutor contended that one of the alleged offences i.e., under Section 338 of BNS is punishable with imprisonment exceeding seven years. Without recording any findings as to whether Section 338 of BNS is applicable to the case at hand, the trial Court directed the Investigating Officer to act under Section 35 of BNSS, which pertains to offences punishable with imprisonment below seven years. Accordingly, the learned Public Prosecutor submitted that the impugned order dated 25.09.2024 is liable to be set aside.

5. On the other hand, the learned counsel for the respondent filed a counter stating that no bail was granted by the trial Court and that the anticipatory bail petition was dismissed. Therefore, the State cannot seek to cancel an order that does not confer bail, making the present petition not legally maintainable and further submitted that the respondent had sent an SMS to the Investigating Officer on 28.09.2024, requesting issuance of notice under Section 35 of

BNSS and appeared accordingly. However, the Investigating Officer did not proceed, due to police bandobust duty obligations and the absence of intent to arrest the respondent. There are no allegations that the respondent tampered with evidence, threatened witnesses, or attempted to abscond.

6. In view of the submissions made by the learned counsel for the petitioner and a perusal of the material available on record, it is evident that the trial Court dismissed the anticipatory bail petition and directed issuance of notice under Section 35 of BNSS in terms of the judgment in Arnesh Kumar case (supra). However, one of the alleged offences i.e., under Section 338 of BNS carries a punishment exceeding seven years, and the trial Court did not record any findings regarding its applicability to the respondent and that the trial Court ought to have considered the gravity and applicability of the alleged offences, particularly in relation to Section 338 of BNSS, before issuing directions under Section 35 of BNSS. Therefore, this Court is of the considered view that the impugned order dated 25.09.2024 passed in Crl.M.P.No.4252 of 2024 by the learned IV Additional Sessions Judge, Hyderabad is liable to be set aside.

7. Accordingly, this Criminal Petition is disposed of and the matter is remanded to the trial Court with a direction to dispose of the anticipatory bail petition afresh after hearing both sides, within a period of two weeks from the date of receipt of a copy of this order.

Miscellaneous applications, if any pending, shall also stand closed.

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K. SUJANA, J Date: 23.07.2025 ss