Andhra Pradesh High Court - Amravati
Kowle Palli Amjad Khan vs The State Of Andhra Pradesh on 7 May, 2025
APHC010537872024
IN THE HIGH COURT OF ANDHRA
PRADESH
[3460]
AT AMARAVATI
(Special Original Jurisdiction)
WEDNESDAY ,THE SEVENTH DAY OF MAY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CRIMINAL PETITION NO: 8626/2024
Between:
Kowle Palli Amjad Khan and ...PETITIONER/ACCUSED(S)
Others
AND
The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT
Counsel for the Petitioner/accused(S):
1. Sudharsana Reddy J
Counsel for the Respondent/complainant:
1. PUBLIC PROSECUTOR
The Court made the following:
2
HON'BLE SRI JUSTICE NYAPATHY VIJAY
Criminal Petition No.8626 of 2024
O R D E R:
The present application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 seeking anticipatory bail.
2. Brief facts of the case are as under:
3. The Petitioners are A.5 to A.7 in Crime No.165 of 2024 on the file of Kadiri Rural Police Station, Sri Satya Sai District filed for the offences under Sections 196 of BNS and Section 66 of the Information Technology Act, 2000 and Sections 111(2), 61, 192, 196, 336(4), 340(2), 352(2) read with 3(5) of BNS and Sections 66 & 67 of the Information and Technology Act, 2000 were added subsequently in the remand report.
4. A complaint was lodged on 02.11.2024 by one Shaik Mohhamed Juned against one Malaka Amarnath Reddy regarding abusive posts in social media and he was initially arrayed as Accused No.1. It is alleged that Malaka Amarnath Reddy voluntarily revealed that abusive and derogatory posts were at the instance of the social media unit of YSRCP political 3 party and on the basis of the confession, the Petitioners and others were implicated as accused in the crime.
5. The offence alleged, in short, was that derogatory/abusive comments were posted in social media platforms against the rival political leaders holding Constitutional posts.
6. The Petitioners are arrayed as accused on the basis of confessions made by the co-accused i.e. persons in whose names the social media accounts were registered.
8. The offences under which the Petitioners were charged barring Section 111 of the BNS, carry maximum sentence of seven (7) years imprisonment and by default would be entitled to notice under Section 35(3) of the BNSS, which is in pari materia with Section 41A of Cr.P.C. as specified by the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar and another1.
9. As noted above, the only bar for issuing notice under Section 35 of the BNSS is Section 111 of the BNS and the entire arguments revolved around applicability of the said Section to the facts of the case.
1 (2014) 8 SCC 273 4
9. Heard Sri J.Sudarshan Reddy, learned counsel for the Petitioners and learned Public Prosecutor for the Respondents.
10. Contentions: It is the contention of the learned counsel for the Petitioners that Section 111 of the BNS is not attracted to the facts of this case since it requires two chargesheets to be pending in the past 10 years with reference to the offences specified in Section 111 of the BNS and in the absence of any such chargesheets, Section 111 of the BNS is not attracted. It is their contention that Section 111 of the BNS was made applicable only with an intent to ensure that there is no requirement to follow Section 35 of the BNSS and to settle political scores by arresting the Petitioners. Learned counsel further contended that the confession of co-accused has extremely poor evidentiary value and such confessions obtained in custody can never be relied upon. The learned counsel further argued that many of the alleged abusive posts were made prior to the onset of the BNS and therefore Section 111 of the BNS cannot be made applicable to the case.
12. Learned Public Prosecutor, in response, had produced the details of the social media posts made by the account holders 5 and contended that such derogatory posts having been made solely at the instance of the Petitioners have the effect of disturbing the harmony in the society. It was further contended that the confessions made by the account holders/co-accused were voluntary and they had admitted in detail the role played by the Petitioners. He also contended that the abusive social media posts at the instance of rival political party were made by the co- accused/account holders for remuneration and the same being a well-oiled network attracts the offence under Section 111 of the BNS. The learned Public Prosecutor contended that the organized derogatory posts at the instance of the Petitioners amounted to 'organized crime'. The learned Public Prosecutor submitted that the abusive social media posts were made prior to the onset of the BNS and also thereafter and therefore Section 111 of the BNS is applicable to the facts of the case.
13. Learned Public Prosecutor had pointed out that there is no requirement of two chargesheets against the accused in the previous 10 years and submitted that filing of complaints would suffice. He further contended that the evidentiary value of the confession of co-accused is an aspect for appreciation by the trial Court.
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14. Issue: Having heard the respective counsel, the issue that falls for consideration in this case is 'whether the Petitioners are entitled for anticipatory bail at this stage'?
15. Reasoning: Before going into the applicability of Section 111 of the BNS, it would be appropriate to refer to Section 111 of the BNS so that there is ease in explaining the scope and applicability of the provision. Section 111 of the BNS reads as under:
Section 111.
(1) Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.
Explanation.--For the purposes of this sub-section,-- (i) "organised crime syndicate" means a group of two or more persons who, acting either singly or jointly, as a syndicate or gang indulge in any continuing unlawful activity;
(ii) "continuing unlawful activity" means an activity prohibited by law which is a cognizable offence punishable 7 with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence, and includes economic offence;;
16. The reason for inclusion of the Petitioners in the crime is the confession of a co-accused. It is too well known that the confession of co-accused in custody cannot be said to be substantive evidence to implicate the Petitioners. Further, the prosecution could not specify any specific derogatory posts made by the Petitioners which could be termed to be abusive from the view point of a matured citizen.
17. The second aspect of the issue is that explanation (ii) to Section 111 of the BNS defining "Continuing unlawful activity"
mandates more than one chargesheet against the accused in the previous ten years. As on the date of registration of the crimes against the Petitioners, nothing has been pointed out as to the pendency of any chargesheet against the Petitioners for the offences referred in Section 111 of the BNS in the preceding 10 years.8
18. In the absence of any chargesheet at the time of registration of crime, the registration of offence under Section 111 of the BNS at this stage appears to be not in consonance with the requirement of law. The High Court of Kerala in the matter of Mohammed Hashim v. State of Kerala2 after referring to the Judgement of the Hon'ble Supreme Court in the matter of State of Maharashtra v. Shiva Alias Shivaji Ramaji Sonawane and others3 arising under the Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOC' Act) held that two chargesheets are a requirement for registering an offence under Section 111 of the BNS. Similar view was taken by the Division Bench of this Court in Pappula Chalama Reddy v. The State of Andhra Pradesh4 in W.P.No. 26769 of 2024, disposed of on 18.12.2024.
19. The Learned Public Prosecutor had filed a memo in Crl.P.No.8059 of 2024 vide USR No.12840 of 2025 and as per the memo, all the crimes registered against the Petitioners in different Districts across the State in the year 2024 are under investigation. In the absence of any chargesheet in the preceding 2 2014 SCC Online Ker 26557 3 (2015) 14 SCC 272 4 2024 SCC online AP 5532 9 10 years, which is a requirement of Section 111 of the BNS, the registration of crime under that Section prima facie appears to be unwarranted.
20. The reliance by the learned Public Prosecutor on the Division Bench judgment of High Court of Allahabad in the case of Jitesh Jha v. State of U.P5 appears to be misplaced. In the said judgement, the application seeking quash of the crime was rejected after taking note of the fact that four chargesheets and cognisance in two cases by the concerned Court are sufficient compliance to invoke Section 111 of the BNS. The principal argument in that case that the chargesheets registered prior to the advent of the BNS cannot be taken into consideration for invocation of Section 111 of the BNS was rejected.
21. Result: In that view and in order to maintain consistency, the Criminal Petition is disposed of directing the Station House Officer concerned to follow the procedure as contemplated under Section 35(3) of BNSS (Section 41-A of the erstwhile Cr.P.C.) scrupulously, as per the guidelines enunciated in Arnesh Kumar 5 2024 SCC Online All 8095 10 v. State of Bihar and another6. As a sequel, the miscellaneous petitions if any shall stand dismissed.
___________________ NYAPATHY VIJAY, J Date: 07.05.2025 KLP 6 (2014) 8 SCC 273