Andhra Pradesh High Court – Amravati
Adapaka Rama Koteswara Rao Alias Koti vs The State Of Andhra Pradesh on 21 July, 2026
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APHC010341282026
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3521]
(Special Original Jurisdiction)
TUESDAY, THE 21st DAY OF JULY 2026
PRESENT
THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO
CRIMINAL PETITION NO: 5467 of 2026
Between:
1. ADAPAKA RAMA KOTESWARA RAO ALIAS KOTI, S/O.
APPALANARASAYYAAGED ABOUT 40 YEARS, OCC
BUSINESS,R/O. 2
2-107/1,SF-305,
305, LNDIRANAGAR
LNDIRANAGAR-1,
VISAKHAPATNAM.
...PETITIONER/ACCUSED
AND
1. THE STATE OF ANDHRA PRADESH, Rep. by its Public Prosecutor,
High Court of A.P.Amaravathi.
...RESPONDENT/COMPLAINANT
Petition under Section 437/438/439/482 of Cr.P.C and 528 of BNSS
praying that in the circumstances stated in the Memorandum of Grounds of
Criminal Petition, the High Court pleased to direct release the petitioner on
bail in the
e event of his Arrest in connection with Crime (FIR).No. 93 of 2026
dated. 15.05.2026 of Cyber Crime Police Station, Visakhapatnam District,
pending enquiry and trial, and pass
Counsel for the Petitioner/accused:
1. SHAIK MEERAVALI
Counsel for the Respondent/complainant:
1. PUBLIC PROSECUTOR
The Court made the following:
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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO
CRIMINAL PETITION NO: 5467 of 2026
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 grant pre-arrest bail to the Petitioner/Accused No.1 in Crime No.93 of
2026 of Cyber Crime Police Station, Visakhapatnam District registered for
the alleged offences punishable under Sections 112(1), 318(4), 319(2) read
with 61(2) of Bharatiya Nyaya Sanhita, 2023 (for brevity ‘the BNS’) Section
66-C, 66-D of ITA-200-2008 and Section 3 and 4 of Gaming Act.
2. Heard the learned Counsel for the Petitioner and the learned
Assistant Public Prosecutor. Perused the record.
3. Even in the petition for grant of pre-arrest bail, the learned counsel
for the Petitioner submits that the alleged offences are punishable with
imprisonment for less than seven (07) years. Therefore, the Petitioner is
entitled to the benefit under Section 35(3) of ‘the BNSS.,’ in view of the
judgments of the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar1
and Md.Asfak Alam v. the State of Jharkhand2.
4. Per contra, Mr.A.Sai Rohit, learned Assistant Public Prosecutor,
submits that, during the course of investigation, the Investigating Officer
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(2014) 8 SCC 273
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(2023) 8 SCC 632
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altered the provision of law from Section 409 of ‘the IPC‘ to Section 408 of
‘the IPC‘. He further submits that, although the allegations levelled against
the Petitioner is punishable with imprisonment of less than seven years, the
investigation is still in progress.
5. As seen from the record, the offences alleged against the
Petitioners/Accused No.1 is punishable with imprisonment for a term of less
than seven years. The Investigating Officer in those cases is under legal
obligation to issue a notice contemplated under Section 35(3) of ‘the
BNSS.,. There are no similar adverse antecedents against the Petitioner.
6. The Hon’ble 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:
“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.”
7. 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.
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Special Leave Petition (Crl.) No.5191 of 2021, dated 15.01.2026
4b. 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.
8. 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
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;
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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;
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.
9. 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.
10. 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 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 his fullest cooperation in the ongoing investigation.
11. 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.
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As a sequel, Miscellaneous petitions, if any pending, shall stand
closed.
_________________________
DR. Y. LAKSHMANA RAO, J
Date: 21.07.2026
KK
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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO
CRIMINAL PETITION NO: 5467 of 2026
Date: 21.07.2026
KK
