WP/25514/2024 of MOHAMMAD JAMAL Vs THE STATE OF AP on 9 December 2025

1. MOHAMMAD JAMA 50 YEARS, R/O. D SOCIETY MILL BAC

1. THE STATE OF VELAGAPUDI, AM PRINCIPAL SECRE

2. THE DIRECTOR PRADESH, VADDE

3. THE SUPERINTE MACHILIPATNAM.

4. THE STATION HO GUDIVADA, KRISH Petition under Articl circumstances stated in pleased to may be please one in the nature of a W order, or direction, to iss E HIGH COURT OF ANDHRA PRAD AT AMARAVATI (Special Original Jurisdiction) DAY, THE TENTH DAY OF DECEMBE THOUSAND AND TWENTY FIVE PRESENT RI JUSTICE CHEEKATI MANAVEND LE SRI JUSTICE VENUTHURUMALL KRISHNA RAO RIT PETITION NO: 25514/2024 AL, S/O.MOHAMMAD MIAH SAHEB, DOOR NO.5/28-C-30, PATAN MA CK SIDE, GUDIVADA, KRISHNA DIS AND AP, HOME DEPARTMENT, S MARAVATHI, GUNTUR DISTRICT, ETARY. GENERAL OF POLICE, STATE ESWARAM, MANGALAGIRI, GUNTU ENDENT OF POLICE, KRISHNA OUSE OFFICER, GUDIVADA II POL HNA DISTRICT. ...RES le 226 of the Constitution of India pra the affidavit filed therewith, the High ed to issue a writ, order, or direction, m Writ of Habeas Corpus or any other a ue a writ, order, or direction, more pa DESH

ER DRANATH ROY I GOPALA AGED ABOUT AHAL STREET, STRICT. ...PETITIONER SECRETARIAT, REP BY ITS OF ANDHRA R DISTRICT. A DISTRICT, ICE STATION, SPONDENT(S): aying that in the h Court may be more particularly appropriate writ, articularly one in the nature of a Writ of Habeas Corpus or any other appropriate writ, order, or direction, a. declaring the arrest of the detenu and the consequential remand order dated 08.11.2024 passed by the Learned Judicial Magistrate of First Class, Gudivada in relation to Crime No.263 of 2024 on the file of Gudivada II Town Police Station, Krishna District as arbitrary, illegal, contrary to procedure established, without application of mind, and violative of Article 22 of Constitution of India and contrary to the settled principles of law as laid down by the Hon’ble Apex Court and this Hon’ble Court and consequently declare the arrest as illegal and set aside the said remand order dated 08.11.2024 passed by the Learned Judicial Magistrate of First Class, Gudivada in relation to Crime No.263 of 2024 on the file of Gudivada II Town Police Station, Krishna District by declaring the detention of the detenu as violative of fundamental rights, and direct the Respondents to pay compensation to the detenu for violation of constitutional rights under article 22 of constitution apart from taking appropriate disciplinary action against the concerned police officers and pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case. Main Prayer was amended as per c.o.dt.28.07.2025 Vide I.A.No.1 of 2025 in W.P.No.25514 of 2024. IA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to direct the respondent No.3 to produce the CCTV footage of the respondent No.4 police station, pending disposal of the Writ Petition and pass IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to issued a direction or a Writ in the nature of Habeas Corpus to direct the respondents to produce my son (detenu), namely Mohammad Khaja Baba, before this Hon’ble Court and to pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case” with the following amended prayer;: “It is therefore prayed that this Hon’ble Court may be pleased To issue a writ, order, or direction, more particularly one in the nature of a Writ of Habeas Corpus or any other appropriate writ, order, or direction. To issue a writ, order, or direction, more particularly one in the nature of a Writ of Habeas Corpus or any other appropriate writ, order, or direction, a. declaring the arrest of the detenu and the consequential remand order dated 08.11.2024 passed by the Learned

Judicial Magistrate of First Class, Gudivada in relation to Crime No.263 of 2024 on the file of Gudivada II Town Police Station, Krishna District as arbitrary, illegal, contrary to procedure established, without application of mind, and violative of Article 22 of Constitution Of India and contrary to the settled principles of law as laid down by the Hon’ble Apex Court and this Hon’ble Court; and consequently declare the arrest as illegal and set aside the said remand order dated 08.11.2024 passed by the Learned Judicial Magistrate of First Class, Gudivada in relation to Crime No.263 of 2024 on the file of Gudivada II Town Police Station, Krishna District by declaring the detention of the detenu as violative of fundamental rights, and direct the Respondents to pay compensation to the detenu for violation of constitutional rights under article 22 of constitution apart from taking appropriate disciplinary action against the concerned police officers and pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case.” In WP.No.25514 of 2024 and pass Counsel for the Petitioner:

1. PAPUDIPPU SASHIDAR REDDY Counsel for the Respondent(S):

1. THE ADVOCATE GENERAL

The Court made the following: ORDER: (Per Hon’ble Sri Justice Cheekati Manavendranath Roy)

This writ petition was originally filed for Habeas Corpus seeking direction to the respondents-Police officials to produce the Corpus by name Mohammad Khaja Baba, who is alleged to have been illegally confined and detained by the Police in their custody, before the Court and then to set him at liberty.

2. After the respondents-Police officials made a statement before the Court that a crime was registered against the Corpus in Crime No.263 of 2024 in II Town Police Station of Gudivada of Krishna District and he was arrested in connection with the said crime and he was produced before the concerned Magistrate and he was remanded to judicial custody, the petitioner, who is the father of the Corpus, filed a petition seeking amendment of the prayer in the writ petition. The amendment sought was to declare the arrest of the Corpus and consequential remand order dated 08.11.2024 passed by the learned Judicial Magistrate of First Class, Gudivada, as illegal, arbitrary and contrary to procedure prescribed under law and also prayed to set-aside the remand order dated 08.11.2024.

3. Heard Mr. P.Sashidar Reddy, learned counsel for the petitioner and Mr. T.Vishnu Teja, learned Special Government Pleader attached to the office of learned Advocate General appearing for the official respondent Nos.1 to 4.

4. On a report lodged by a person by name Akunuri Sriram Kanakabaram, a crime was registered against the Corpus for offences punishable under Sections 192, 196 336(4), 340(2), 353(2), 79 of the Bharatiya Nyaya Sanhita, 2023 (for short, ‘BNS Act’), 67 of the Information Technology Act (for short, ‘IT Act’), 2000-2008 in crime No.263 of 2024 in II Town Police Station of Gudivada. The said crime was registered on 03.11.2024. Thereafter, as the offences registered against the Corpus are punishable with less than seven years period of imprisonment, Police have served a notice on 07.11.2024 under Section 35(3) of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS Act’), on the Corpus. As the Corpus refused to take notice and to receive the said notice, the Police arrested him on the same day i.e., on 07.11.2024. He was produced before the learned Additional Judicial Magistrate of First Class, Gudivada, on 08.11.2024. A mediators report was also prepared in proof of the fact that the Corpus has refused to receive the notice served on him under Section 35(3) of the BNSS Act. The same was also enclosed to the remand report. The learned Magistrate after perusing the remand report and considering the same, remanded the Corpus to judicial custody. At this juncture itself, it is relevant to note that at the time of producing the Corpus before the learned Magistrate, as can be seen from the detailed order passed by the learned Magistrate, the Corpus did not complain to the Magistrate that no notice was served on him as required under Section 35(3) of the BNSS Act. Therefore, after considering the material that was placed before him and after recording a finding that the Police have complied with the procedure contemplated under law at the time of arrest of the Corpus and as the learned Magistrate found that prima facie case is made out against the Corpus as per the material produced before him and as the accusation made against him is well founded, the learned Magistrate by the impugned order, remanded the Corpus to judicial custody.

5. The validity of the said order of remand is now challenged before this Court by the petitioner on the ground that no notice under Section 35(3) of the BNSS Act was infact served on the Corpus and the learned Magistrate erred in accepting the remand and remanding the Corpus to judicial custody. It is also vehemently contended by the learned counsel for the petitioner that even if any such notice was served on the Corpus and if he refuses to receive the same, the Police cannot immediately arrest him on the same day and they have to wait till the date given in the said notice to the attend before the Police and thereafter, if he fails to comply with the terms of the notice then the Police can arrest him. In other words, it is the contention of learned counsel for the petitioner that Clause (6) Section 35 of the BNSS Act empowers and enables the Police to arrest the accused only when terms of the notice are not complied with by the Corpus and as the Police did not wait till the expiry of the date mentioned in the notice to appear before the Police on 10.11.2024, it cannot be said that the terms of the notice are not complied with and as such the arrest of the Corpus in the given facts and circumstances of the case is ex facie illegal and the learned Magistrate did not apply his mind to the said legal position and erroneously remanded him to judicial custody and for that reason the order of remand is bad in law and is liable to be set-aide.

6. Repelling the said contention, learned Special Government Pleader appearing for the respondents-Police officials contends that when a notice under Section 35(3) of the BNSS Act was served on the Corpus, he deliberately refused to take the said notice and the very refusal to take the notice clearly amounts to non-compliance with the terms of the notice and as such the Police can arrest the Corpus when he deliberately refused to take the notice. Therefore, he contends that the arrest of the accused by the Police on 07.11.2024 cannot said to be illegal. On 08.12.2025, after hearing the said submissions of the learned Special Government Pleader, we have directed the learned Special Government Pleader to produce copy of the notice said to have been served on the Corpus under Section 35(3) of the BNSS Act along with the endorsement made thereon by the serving officer to the effect that the Corpus refused to take the notice. Pursuant to the said direction, the learned Special Government Pleader has today produced the copy of the said notice under Section 35(3) of the BNSS Act and the same is taken on record. It

is evident from the endorsement made thereon by the serving officer that the Corpus has refused to take the said notice. In addition to that he has invited our attention to the mediators report enclosed to the remand report. In the mediators report, it is clearly stated that when the Police officer has served notice under Section 35(3) of the BNSS Act on the Corpus that he refused to take the notice. The mediators report was also signed by the two mediators. Therefore, after considering the said material i.e. the mediators report etc., the learned Magistrate was satisfied that the procedure has been complied with and thereafter that the Police arrested the Corpus. So, he has ordered for his remand to judicial custody. We have already noticed supra while narrating the facts of the case that the Corpus did not complain before the learned Magistrate when he was produced before him that no notice was served on him under Section 35(3) of the BNSS Act. Therefore, considering the said fact and considering the endorsement made on the copy of the notice under Section 35(3) of the BNSS Act, which is now produced today and the mediators report enclosed to the remand report, it is evident that a notice was infact served on the Corpus under Section 35(3) of the BNSS Act and he has refused to receive the same.

7. Now the crucial question that fall for determination is whether the Police got right to arrest the accused when he refused to receive the notice served on him under Section 35(3) of the BNSS Act. That is the main argument submitted by the learned counsel for the petitioner contending that even if he refuses to receive the notice that the Police have no right to arrest him and they have to wait till the period mentioned in the notice to appear before the Police is expired. We are unable to persuade ourselves to agree with the said contention. Section 35(3) of the BNSS Act mandates that the Police officer in all cases, where arrest of a person is not required under sub-Section (1), to issue a notice directing the person against whom a report has been lodged to appear before him or at a place as may be specified in the notice. Clause (6) of Section 35 of the BNSS Act thereof mandates that when such person fails to comply with the terms of the notice, he may be arrested by the Police for the offence mentioned in the notice and the said arrest would be subject to orders that may be passed by the competent Court.

8. In its true sense what Clause (6) of Section 35 of the BNSS Act envisages is that if a person who receives the said notice served under Section 35(3) of the BNSS Act fails to appear before the Police officer or to comply with the terms of the said notice, then the Police officer is empowered to arrest him. Now, the question is whether refusal to take or receive the notice by the accused amounts to failure to comply with the terms of the notice and whether the Police officer got right to arrest him in the said circumstance or not. In our considered view, the true interpretation to be given to Clause (6) of Section 35 of the Act is that refusal to take notice served on the accused under Section 35(3) of the BNSS Act certainly amounts to failure to comply with the terms of the notice. So, when the accused fails to receive the notice, certainly it would be well within the competence of the Police officer to arrest him in connection with the said crime. The contention of the petitioner that the Police officer has to wait till the date given in the notice for appearance of the Corpus expires and then he has to arrest him on the ground of non- compliance with the terms of the notice is devoid of any merit. A Police officer cannot expect an accused who deliberately refused to take and receive the notice served on him to appear before him on the given date. The problem can be approached from a different angle from the point of view of the prosecution. If the accused refuses to take notice under Section 35(3) of the BNSS Act deliberately, he will not have knowledge of date of appearance. So, the question of the accused appearing on a given date does not arise at all. Further, there is also a chance for his absconding, in which case, it would be difficult for the Police to nab him for the purpose of the investigation of the said case. Therefore, in the said circumstances, the Police Officer is justified in taking him into the custody on account of his deliberate refusal to receive the notice, which certainly tantamounts to non-compliance with the terms of the notice. When the accused exhibits such recalcitrant nature and deliberately refuses to take notice served on him, in our considered view, the Police got every right to arrest him by following the due process of law.

9. Therefore, in the said facts and circumstances of the case, it cannot be said under any stretch of reasoning that the arrest of the accused on account of his failure to receive the notice under Section 35(3) of the BNSS Act is illegal.

10. For the aforesaid reasons, we are also of the considered view that the impugned order of the remand cannot also be said to be illegal and it is perfectly sustainable under law. We do not find any legal flaw or infirmity in the impugned order of remand. Learned counsel for the petitioner then contended that after the arrest, Section 111 of the BNS Act was included and it has absolutely no application to the facts of the case and no offence under Section 111 of the BNS Act is constituted from the facts of the case and the learned Magistrate without considering the same, accepted the remand and it amounts to non-application of his mind and it vitiates the order of remand. Learned Special Government Pleader would contend that it is clearly mentioned in the remand report as to how an offence under Section 111 of the BNS Act is made out and how it is subsequently added in the remand report and as such, it cannot be said that the learned Magistrate did not apply his mind and mechanically and causally accepted the remand report. We have gone through the contents of the remand report. It is clearly mentioned in the remand report as to how the Section 111 of the BNS Act which was subsequently added and how the offence was made out. It is to be noticed that at the time of remand, a roving enquiry relating to correctness of the allegations made in the report lodged by the de facto complainant or the correctness of the allegations made in the remand report is not required to be made by the learned Magistrate. All that is required to ascertain at the time of passing an order of remand is to find out whether any prima facie case, as alleged, is made out against the accused and whether the accusation made against him is well founded or not. If the Magistrate, after perusing the material placed before him, is of the view that a prima facie case is made out against the accused and the accusation made against him is well founded, it would be well within his competence to order for remand of the accused. A perusal of the impugned order of the remand clearly shows that the learned Magistrate has considered the material which is placed before him and he has applied his mind to it and after satisfying himself that a prima facie case is made out against the accused and that the accusation made against the accused is well founded, then only he has ordered to remand him to judicial custody. Therefore, even on that ground, which is now urged by learned counsel for the petitioner, the impugned order of remand cannot be held to be unsustainable under law.

11. The judgment relied on by the learned counsel for the petitioner of Coordinate Bench of this Court rendered in the case of Pappula Chalama Reddy v. State of Andhra Pradesh and others 1 is not applicable to the present facts of the case. The facts of the said case are distinguishable when compared to the facts of the present case. Infact, ultimately in the said case, the writ petition was dismissed upholding the order of remand on other grounds. All that is stated at para No.49 of the said judgment is when an order of remand is questioned on certain lacunas pointed out in the order, that a writ of Habeas Corpus would be maintainable. So, the said judgment is of no avail to the case pleaded by the petitioner.

1 2024 SCC OnLine AP 5532

12. So, the impugned order of remand cannot be set-aside on any of the grounds that are urged before the Court. The writ petition is devoid of merit and the same is liable to be dismissed.

13. Resultantly, the Writ Petition is dismissed. There shall be no order as to costs.

As a sequel, Interlocutory Applications pending, if any, shall stand closed.

________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

______________________________________________ JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO

Date: 10.12.2025 MDP