"‘Trial Court Acted Without Application of Mind’: Karnataka High Court Grants Bail, Flags Procedural Lapses in Invocation of Organized Crime Charges Under Section 111 BNS, 2023"
Safiya Malik
The Karnataka High Court at Bengaluru, Singe Bench of Justice S Vishwajith Shetty, allowed a criminal petition seeking regular bail and recorded procedural lapses in the invocation of Section 111 of the Bharatiya Nyaya Sanhita (BNS), 2023. The Court stated that “the Trial Court without application of mind has allowed the said application” which permitted the investigating officer to invoke offences under Sections 111(3) and 111(4) of BNS, 2023. The petitioner was released on bail after the Court noted “there is no material collected by the Investigation Officer, so as to invoke the offences punishable under Sections 111(3) and 111(4) of BNS, 2023.”
The Court directed that the bail be subject to specific conditions and observed that “the right to statutory/default bail is not a mere statutory right, but is part of the procedure established by law under Article 21 of the Constitution of India.”
The petitioner, Avinash, aged 22 years, was arrested in connection with Crime No.794/2024 registered at South East CEN Crime Police Station, Bengaluru City, for offences under Sections 318(4), 319(2) of BNS, 2023, and Section 66(D) of the Information Technology Act, 2000. The registration of the First Information Report was based on a complaint dated 24 August 2024 from Ms. Manthalir N., daughter of Keshav Singh K.
During the investigation, the petitioner was issued a notice under Section 35(3) of BNS, 2023, and appeared before the police on 6 January 2025. He was arrested on the same day and remanded to judicial custody. A bail application filed by the petitioner before the jurisdictional Sessions Court in Crl.Misc.No.264/2025 was rejected on 20 January 2025.
The petitioner’s counsel submitted that he had no prior criminal antecedents and was the only individual arrested in this case. It was submitted that the investigating officer filed an application before the trial court to invoke Sections 111(3) and 111(4) of BNS, 2023, which the trial court permitted. The petitioner contended that the application was allowed “mechanically” and “without application of mind.” It was further submitted that since the chargesheet was not filed within the statutory period, the petitioner was entitled to statutory bail.
In response, the Additional State Public Prosecutor submitted that during interrogation, the statement of one Hazarat Ali Malhakatti was recorded, following which an enquiry notice was issued to the petitioner. The prosecutor stated that “on 06.01.2025 he has been arrested,” and submitted that “further investigation of the case is under progress.”
The remand application recorded that the petitioner admitted to having withdrawn ₹1,00,000 from the account of Hazarat Ali Malhakatti using his ATM card on the latter’s instructions. The Court recorded that “except the aforesaid allegation, there is no other allegation as against the petitioner.”
The Court noted that “the alleged offences are triable by the Court of Magistrate and the maximum punishment for the aforesaid offences is imprisonment for a period of 7 years.” It was also recorded that “undisputedly, petitioner has no other criminal antecedents and except the petitioner, till date no other accused has been arrested in the present case.”
The Court referred to Section 187 of BNSS, 2023, which governs detention and bail procedures when investigation cannot be completed within 24 hours. It quoted the section in full and observed that “for the offences for which FIR has been filed in the present case, if the investigation is not completed and final report is not filed within a period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail.”
The Court recorded that the investigating officer filed an application before the trial court seeking to invoke Sections 111(3) and 111(4) of BNS, 2023. The Court stated that “it is not in dispute that the petitioner has no other criminal antecedents and except the petitioner no other accused has been arrested in the present case.”
Section 111 of BNS, 2023, defines the offence of organised crime and stipulates conditions for its invocation. The Court quoted the provision in detail and observed that “for the purpose of invoking Section 111 of BNS, 2023, there are certain basic parameters and if only it is found that the accused comes within the said parameters, the offence punishable under Section 111 of BNS, 2023 can be invoked.”
The Court listed the required parameters for invoking Section 111: “the offences enlisted in the Section must have been committed; accused should be a member of an organized crime syndicate; he should have committed the crime as a member of an organized crime syndicate or on behalf of such syndicate; he should have been chargesheeted more than once before a competent Court within the preceding period of ten years for a cognizable offence punishable with imprisonment for three years or more and the Court before which chargesheet has been filed should have taken cognizance of such offence and includes economic offence; the crime must be committed by using violence, intimidation, threat, coercion or by any other unlawful means.”
The Court directed the Additional State Public Prosecutor to produce the material collected by the investigation officer that justified invoking Sections 111(3) and 111(4) of BNS, 2023. In response, an affidavit was filed by the investigation officer stating that “there is a possibility of accused No.2 being involved in other crime, hence they have included Sections 111(3) and 111(4) of BNS, 2023.”
Upon examining the order sheet, the Court recorded that “a requisition was filed by the Investigation Officer to invoke Sections 111(3) and 111(4) of BNS, 2023 much prior to the arrest of the petitioner.” It was recorded that “petitioner was arrested in the present case on 06.01.2025, whereas the requisition to invoke Sections 111(3) and 111(4) of BNS, 2023 was filed before the Trial Court on 07.12.2024 and the Trial Court without application of mind has allowed the said application on the same day.” The Court observed that “as on the said date, Investigation Officer had not arrested any accused persons and absolutely there was no material before him so as to invoke the offences punishable under Sections 111(3) and 111(4) of BNS, 2023.”
The Court recorded that “Section 187(3) of BNSS, 2023 which is pari materia to Section 167(2)(a) of Cr.P.C provides for a right to statutory bail to the accused.” The Supreme Court’s decision in Bikramjit Singh v. State of Punjab, 2020 SCC Online SC 824 was cited, where it was stated that “the right to statutory/default bail is not a mere statutory right, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right guaranteed to an accused person.”
The Court stated that “since the Trial Court has permitted the Investigation Officer to invoke the offences punishable under Sections 111(3) and 111(4) of BNS, 2023, the time to complete investigation and submit final report, automatically gets extended and thereby, the precious right guaranteed to an accused under Section 187(3) of BNSS, 2023 is infringed and his right to liberty guaranteed under Article 21 of the Constitution of India is also curtailed.”
It was recorded that “the Courts are therefore required to be more cautious while permitting the Investigation Officer to invoke the offence punishable under Section 111 of BNS, 2023 and whenever such an application/requisition is filed by the Investigation Officer, the Courts are required to apply their mind and thereafter pass necessary orders.” The Court directed that “the application/requisition of the Investigation Officer seeking permission of the Court to invoke Section 111 of BNS, 2023, shall be accompanied with necessary documents/materials which would prima-facie show the necessity to invoke the offence punishable under Section 111 of BNS, 2023.”
On the merits of the bail application, the Court recorded that “except the allegations that the petitioner had withdrawn a sum of Rs.1,00,000/- from the account of Hazarat Ali Malhakatti using his ATM card on his instructions, there is no other allegations.” It was further recorded that “petitioner has no other criminal antecedents. He has been arrested on 06.01.2025 and learned Addl. SPP has fairly submitted that charge sheet is not filed and at this stage there is no material collected by the Investigation Officer, so as to invoke the offences punishable under Sections 111(3) and 111(4) of BNS, 2023.”
The Court allowed the petition and directed that the petitioner be enlarged on bail in Crime No.794/2024. It ordered that the petitioner “shall execute personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the likesum, to the satisfaction of the jurisdictional Court; shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons; shall not directly or indirectly threaten or tamper with the prosecution witnesses; shall not involve in similar offences in future; shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off.”
Advocates Representing the Parties
For the Petitioner : Vachan Gowda , Advocate
For the Respondent : Pushpalatha, Additional State Public Prosecutor, Vinay Mahadevaiah, High Court Government Pleader
Case Title: Avinash v. The State of Karnataka
Neutral Citation: 2025:KHC:10169
Case Number: Criminal Petition No. 893 of 2025
Bench: Justice S Vishwajith Shetty
[Read/Download order]
