Andhra Pradesh: The Andhra Pradesh High Court has held that theft of property valued below ₹5,000 is a non-cognizable offence under the Bharatiya Nyaya Sanhita, 2023 (BNS), and that the police cannot mechanically register an FIR and proceed with investigation without obtaining prior permission from the concerned Magistrate.
Justice Dr. Venkata Jyothirmai Pratapa quashed criminal proceedings against an accused in a sand theft case where the stolen material was valued at merely ₹1,500, holding that the police action in registering the FIR and filing a chargesheet without obtaining appropriate directions from the Magistrate constituted a “clear abuse of process of law.”
The case arose from Crime No. 720 of 2025 registered at C. Belagal Police Station, Kurnool District, for offences punishable under Section 303(2) of the BNS and Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act). The petitioner, P. Rashidulla, was arrayed as Accused No. 3 in the case, where authorities had found sand in one trailer attached to a tractor, while another tractor was empty.
Senior Counsel Posani Venkateswarlu, appearing for the petitioner along with Advocate K.V. Raghuveer, argued that the complaint and chargesheet did not mention the value of the property. He contended that when the offence is non-cognizable, the police have no authority to register the case and file a report on their own. He further submitted that the case was lodged against the petitioner based on the confession of a co-accused, which is merely corroborative evidence and not substantive evidence sufficient to sustain the case.
The Senior Counsel also raised procedural objections, pointing out that the petitioner was not the owner of the tractor and that the informant and the investigating officer were the same person. He highlighted that under Section 22 of the MMDR Act, only an authorised officer from the Mining Department can file a private complaint, and the police cannot register a case and file a report before the Court.
Assistant Public Prosecutor K. Priyanka Lakshmi conceded that the value of the sand, as per the Tahsildar’s report, was ₹1,500, and admitted that the police had not obtained any permission from the Court to conduct investigation into the non-cognizable offence.
Justice Pratapa undertook a detailed analysis of Section 303 of the BNS, which defines and prescribes punishment for theft. The Court noted that Section 303(1) defines theft as the act of dishonestly taking movable property out of another’s possession without consent, with the intention of taking it. Section 303(2) prescribes punishment of imprisonment up to three years, or fine, or both, with enhanced punishment for repeat offenders.
Crucially, the Court highlighted the proviso to Section 303(2), which states:
“Provided that in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, such person shall, upon return of the value of the property or restoration of the stolen property, be punished with community service.”
The Court drew a critical distinction between the erstwhile Indian Penal Code (IPC) and the new BNS. While theft under Sections 378 and 379 of the IPC was an entirely cognizable offence, the offence under Section 303 of the BNS is punishable based on the severity of the offence. Where the value of the stolen property does not exceed ₹5,000, it attracts only community service as punishment upon restoration or return of the property in the case of a first conviction—a lesser punishment indicating the non-cognizable nature of such offences.
The Court held unequivocally:
“There is no doubt that the offence under Section 303(2) of the BNS is a non-cognizable offence. In such circumstances, the police shall follow the procedure laid down under Section 174 of the Bharatiya Nagarik Suraksha Sanhita, which mandates obtaining appropriate directions from the concerned Magistrate before proceeding with the investigation.”
Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has replaced the Code of Criminal Procedure, 1973, lays down the procedure for investigation of non-cognizable cases and requires the police to obtain magisterial permission before proceeding.
On the MMDR Act aspect, Justice Pratapa observed that the Trial Court is barred under Section 22 of the MMDR Act from taking cognizance of offences under the Act except upon a written complaint by the authority notified by the government. Consequently, police-initiated action in MMDR cases also suffered from jurisdictional infirmity.
Finding merit in the petitioner’s contentions and noting the prosecution’s concession that the stolen sand was valued at only ₹1,500—well below the ₹5,000 threshold—the Court held that the police had “mechanically registered the FIR against the petitioner without obtaining appropriate direction from the concerned Magistrate and proceeded with the investigation and filed the chargesheet.”
Allowing the criminal petition, Justice Pratapa quashed the proceedings in Crime No. 720 of 2025 pending before the Judicial Magistrate of First Class-cum-Special Mobile Court, Kurnool. However, the Court clarified that the order “does not preclude the competent authority under the MMDR Act from taking further action in accordance with law, if so advised.”
Case Title: P. Rashidulla v. The State of Andhra Pradesh and Another
