Madhya Pradesh High Court
Bhura @ Bhupendra Singh Tomar vs The State Of Madhya Pradesh on 24 September, 2020
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.35434/2020
Bhura @ Bhupendra Singh Tomar Vs. State of M.P.
Gwalior, Dated:-24/09/2020
Shri Prashant Sharma, learned counsel for the applicant.
Shri Ravindra Singh Kushwah, learned Deputy Advocate
General for the respondent/State.
Matter is heard through video conferencing. The applicant has filed this first bail application under Section 438 of Cr.P.C. for grant of anticipatory bail.
The applicant apprehends his arrest in connection with Crime No.105/2016 registered at Police Station Ambah, Distt. Morena (M.P.) in relation to the offence punishable under Section 379 of IPC.
It is submitted by learned counsel for the applicant Bhura @ Bhupendra Singh Tomar that the applicant has not committed any offence. He has falsely been implicated in this case only on the basis of memorandum given by co-accused of this case. As per FIR, there is no allegation against the present applicant of committing theft of Tractor. Only on the ground that the present applicant stated that he will make possible to return back aforesaid Tractor, case has been registered against him. It is further submitted that only on the basis of memorandum given by co-accused of this case, present applicant cannot be implicated or even tried. It is also submitted that there is no need of custodial interrogation of present applicant in this case. There is no criminal antecedent against the present applicant, rather he was 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35434/2020 Bhura @ Bhupendra Singh Tomar Vs. State of M.P. helping the Panchayat to do justice by confirming the fact of theft by somebody and assured to get returned back the theft Tractor. Due to present COVID-19 pandemic, there is no possibility of commencement of regular physical hearing before the trial Court in near future. Hence, prayed to grant benefit of anticipatory bail to the applicant.
Learned State counsel has vehemently opposed the application and has submitted that allegation levelled against the present applicant is that he sold out the aforesaid Tractor, therefore he has been implicated in this case. Hence, prayed to reject the present application filed by the applicant for grant of anticipatory bail.
Learned counsel for the applicant has further submitted that in the light of the decision rendered by the Hon'ble Apex Court in the case of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273, order may be passed as the offence against the present applicant is registered under Section 379 of IPC, where maximum punishment is imprisonment of 3 years.
Heard learned counsel for the parties at length through VC and considered the arguments advanced by them and perused the case diary.
The Hon'ble Supreme Court in the case of Arnesh Kumar (supra) has directed that in offences involving punishment upto seven 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35434/2020 Bhura @ Bhupendra Singh Tomar Vs. State of M.P. years imprisonment the police may resort to the extreme step of arrest only when the same is necessary and the petitioner does not cooperate in the investigation. The petitioner should first be summoned to cooperate in the investigation. If the petitioner cooperates in the investigation then the occasion of his arrest should not arise.
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 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35434/2020 Bhura @ Bhupendra Singh Tomar Vs. State of M.P. 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. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (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."
As the case is registered against the present applicant under Section 379 of IPC and there is no criminal antecedent against the present applicant, present anticipatory bail application is disposed of in the light of laid down by Hon'ble Apex Court in the case of Arnesh Kumar (Supra).
Prosecution is hereby directed to comply with the direction issued by Hon'ble Apex Court in Arnesh Kumar (supra) in it's letter & spirit.
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THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.35434/2020 Bhura @ Bhupendra Singh Tomar Vs. State of M.P. E-copy of this order be sent to the trial Court concerned for information.
Certified copy/ e-copy as per rules/directions.
(Rajeev Kumar Shrivastava) Judge SHUBHANKAR MISHRA 2020.09.24 17:32:13 +05'30'