Madhya Pradesh High Court
Sunil Yadav vs The State Of Madhya Pradesh on 8 July, 2021
Equivalent citations: AIRONLINE 2021 MP 861
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
1 MCRC-33288-2021
The High Court Of Madhya Pradesh
MCRC-33288-2021
(SUNIL YADAV Vs THE STATE OF MADHYA PRADESH)
1
Jabalpur, Dated : 08-07-2021
Heard through Video Conferencing.
Shri Sheersh Agrawal, learned counsel for the applicant.
Shri Yogendra Das Yadav, learned G.A. for the respondent/State.
This is first application filed by the applicant under Section 438 of Cr.P.C. for grant of anticipatory bail.
Applicant is apprehending his arrest in connection with Crime No.392/2020 registered at Police Station-Ajaygarh, District-Panna, (MP), for the offence punishable under Section 420 r/w Section 34 of IPC.
The matter in brief is that on the complaint of one Ramesh Singh Yadav dated 31.07.2020 the offence was registered against the applicant and two other persons under Section 420 & 34 of IPC, alleging therein that the applicant and co-accused on pretext of partnership in Virtual Business Solution involved excavation of sand at Village-Majhgain, Ajaygarh got deposited a sum of Rupees Thirty Six lakhs in account no. 072205001257 of the said company on three different dates i.e. on 17.06.2018, 18.06.2018 and 29.06.2018 through RTGS. The complainant has further averred that co-accused/Baldau Prasad Yadav took rupees seven lakhs from one Jagmohan Singh. He has further alleged that one Smt. Ranjana Singh too had deposited a sum of Rupees Fifteen Lakh in company's aforesaid bank account for the purposes of becoming partner in the sand excavation work in the year 2018 and further siphoned Rupees Two Lakhs and Forty Thousand in cash. The complainant goes to say that in a similar manner the co-accused/Baldau Prasad Yadav and Signature Not Verified SAN applicant on pretext of making partner in the work/company induced Digitally signed by LALIT SINGH RANA Date: 2021.07.08 17:13:36 IST 2 MCRC-33288-2021 Abhash Chandra Singh to deposit Rupees Ten Lakh in the company's account through RTGS and received Two Lakh Forty Seven Thousand and Two Hundred in cash from him. According to the complainant, the accused and other persons involved had represented that the Company i.e. virtual business solution had mining rights for the sand excavation at Majhgain, Ajaygarh for the period of 2016 to 20.03.2020 and they had assured to make them partners in the ratio of their capital contribution, however, they were not made partners and their money was siphoned by the accused persons.
Learned counsel for the accused/applicant submits that applicant is innocent person and has been falsely implicated in this case. Actually Virtual Business Solution bought lease for sand excavation at Majhgain, Ajaygarh from 2016 to 20.03.2020. Co-accused Rajesh Arora is named a s Proprietor of that Company. Accused-Baldau Prasad himself deposited rupees five lakhs for partnership of Company. He has not received any amount from the complainants. This company has deposited lease amount time to time to the Government but mining lease of the Company has been cancelled by the Mining Department in January- February 2019 due to further non-payment of quarterly installments. After t h e cancellation of licence the complainant started intimidating the persons named in the FIR as accused for want of his money and vouched to teach them a lesson in order to get back their money. So, this is a case o f civil nature. Applicant-accused has no role in this matter. He is employee of Rajesh Arora. Applicant-accused has no previous criminal antecedent. There is no probability of his absconding or tampering with the prosecution evidence. It is the time of COVID-19 pandemic due to this social distancing is very necessary. No further custodial interrogation is required in this case. co-accused Rajesh Arora has filed Signature Not Verified SAN the application under Section 438 of Cr.P.C., which is disposed of in the Digitally signed by LALIT SINGH RANA Date: 2021.07.08 17:13:36 IST 3 MCRC-33288-2021 light of Arnesh Kumar's case by the co-ordinate Bench of this Court vide order dated 24.04.2021 passed in M.Cr.C. No. 16264/2011 and the application of co-accused Baldau Prasad Yada under Section 438 of Cr.P.C. has also been disposed of in the light of Arnesh Kumar's case by this Court vide order dated 03.06.2021 in M.Cr.C. No. 24651/2021. Therefore, learned counsel for the applicant prays for grant of anticipatory bail to the applicant.
Learned Panel Lawyer for the respondent-State opposes the prayer of the applicant.
Considering the contentions of both the parties and this fact that applicant-accused has got rupees two lakhs forty Seven thousand and two hundred from one Abhash Chandra Singh but however, looking to the fact that since the offence in question attracts punishment less than 7 years and therefore, in such type of cases arresting is not mandatory.
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., i t 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 Signature Not Verified SAN Digitally signed by LALIT SINGH RANA Date: 2021.07.08 17:13:36 IST
4 MCRC-33288-2021 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. 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 vitalized. 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 he Magistrate as aforesaid."
In view of above and considering the principles laid down by the Hon'ble Apex Court in the case of Arnesh Kumar (Supra), this Court is inclined to allow the application and direct thus :
(i) 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.
(ii) That, the applicant should first be summoned to cooperate in the investigation. If the applicant cooperates in the investigation then the occasion of his arrest should not arise.
(iii) That, if the applicant-accused is arrested and he wants to file Signature Not Verified application under Section 437 of Cr.P.C. for regular bail before lower Court, SAN Digitally signed by LALIT SINGH RANA Date: 2021.07.08 17:13:36 IST 5 MCRC-33288-2021 then he will be produced before the lower Court without any delay.
With the aforesaid directions, the present anticipatory bail application stands disposed of.
Let E-copy of this order be sent to the trial Court concerned for information.
Certified copy/ e-copy as per rules/directions.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE L.R. Signature Not Verified SAN Digitally signed by LALIT SINGH RANA Date: 2021.07.08 17:13:36 IST