Adapaka Rama Koteswara Rao Alias Koti vs The State Of Andhra Pradesh on 21 July, 2026

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    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

    SPONSORED

    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

    1
    (2014) 8 SCC 273
    2
    (2023) 8 SCC 632
    3

    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.

    3

    Special Leave Petition (Crl.) No.5191 of 2021, dated 15.01.2026
    4

    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.

    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



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