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Madhya Pradesh High Court · body

2020 DIGILAW 452 (MP)

Shivam Gupta v. State Of M. P.

2020-03-20

S.A.DHARMADHIKARI

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JUDGMENT 1. Learned counsel for the rival parties are heard. 2. This is first bail application u/S. 438 Cr. P.C. filed by the applicant for grant of anticipatory bail. 3. Applicant apprehend his arrest in connection with offences punishable u/S 452, 323, 294, 506 and 34 of the IPC registered as Crime No. 69/2020, by Police Station Kotwali District Datia (M.P.). 4. Allegation against the petitioner in short is that on 14/02/2020 at about 8.00 am altercation took place between the complainant and applicant and other co-accused. They started using filthily abuses and thereafter caught hold hairs of the complainant and started beating him. Thereafter, complainant ran away inside the house. Applicant and other co-accused persons entered into house and beaten him with kicks and fists due to which he received various injuries. On the aforesaid basis, crime has been registered. 5. Learned counsel for the applicant submits that he has falsely been implicated in the matter except offence under Section 452 of the IPC, all other offences are bailable. The injuries are also simple in nature and there is no likelihood of his absconsion if he is granted the benefit of anticipatory bail. He is ready to abide by all the terms and conditions as may be imposed by this Court. With the aforesaid submissions, prayer for anticipatory bail is made. 6. Learned Public Prosecutor for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of anticipatory bail is made out. 7. However, considering the principles laid down by the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273 , it is directed that in offences involving punishment upto seven years imprisonment the police may resort to the extreme step of arrest only when the same is necessary and the applicant does not cooperate in the investigation. The applicant should first be summoned to cooperate in the investigation. If the applicant cooperate in the investigation, then the occasion of their arrest should not arise. 8. The applicant should first be summoned to cooperate in the investigation. If the applicant cooperate in the investigation, then the occasion of their arrest should not arise. 8. For ready reference and convenience, the guidelines laid down by the Supreme Court in the case of Arnesh Kumar (Supra) are enumerated below:- 7.1 From a plain reading of the provision u/S.41 Cr.P.C., it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required ? What purpose it will serve ? What object it will achieve ? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. What object it will achieve ? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by subclauses (a) to (e) of clause (1) of Section 41 Cr.P.C. 9. Another provision i.e. Section 41-A Cr.P.C. aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. This provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) Cr.P.C., the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid." 9. In view of above and considering the principles laid down by the Apex Court in the case of Arnesh Kumar (Supra) this court is inclined to direct thus: -- (1) that, the police may resort to the extreme step of arrest only when the same is necessary and the applicant fails to cooperate in the investigation. (2) that, the applicant should first be summoned to cooperate in the investigation. If that applicant cooperates in the investigation, then the occasion of his arrest should not arise. With the aforesaid directions, this application stands disposed of. C.C. as per rules.