1. Criminal Petition has been filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) by the Petitioner/Accused No.1 for grant of pre-arrest bail in connection with Crime No.25 of 2025 on the file of Sangam Police Station, Sri Potti Sriramulu Nellore District, registered for the alleged offence punishable under Section 308(5) of the Bharatiya Nyaya Sanhita, 2023 (for brevity ‘the BNS’).

2. Heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor. Perused the record.

3. As seen from the record, the allegation against the petitioner, who worked as a Home Guard, is that the petitioner, along with others, stopped the lorry of the de-facto complainant, claiming to have the authority to intercept the vehicle, and asked the driver to produce certain documents relating to the vehicle. It is alleged that the driver of the de-facto complainant was threatened by the petitioner and other accused to transfer Rs.5,000/- through PhonePe. Accordingly, the driver paid Rs.5,000/- via PhonePe to the account of the petitioner. It is further alleged that Rs.2,000/- was forcibly taken from the de- facto complainant through criminal intimidation, with a threat that if the matter was revealed to anyone, he would see the end.

4. On perusal of the above allegations, it is doubtful whether Section 308(5) of ‘the BNS.,’ would attract, as there is no allegation that the petitioner and others had put the victims in fear of death or grievous hurt. At most, Section 308(2) of ‘the BNS.,’ would be attracted in the present case. Section 308(2) is punishable with imprisonment for up to seven years, or fine, or with both.

5. In view of the matter, it is apposite to mention the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar((2014) 8 SCC 273), 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;

                  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.

6. The similar view is also reiterated by the Hon'ble Apex Court in Md. Asfak Alam v. the State of Jharkhand((2023) 8 SCC 632) which also reiterated the guidelines laid down in the case of Arnesh Kumar.

7. In the light of the law laid down in the case of 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’. The petitioner is obliged to render his fullest cooperation in the ongoing investigation.

8. In the result, the Criminal Petition is disposed of directing the Investigating Officer to comply with Section 35(3) of ‘the BNS’/41-A of ‘the Cr.P.C.,’ and to strictly follow the directions issued in the cases of Arnesh Kumar and MD. Asfak Alam.