Haricharan vs The State Of Madhya Pradesh on 26 December, 2022

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Madhya Pradesh High Court

Haricharan vs The State Of Madhya Pradesh on 26 December, 2022

The is first Criminal Appeal under Section14-A(2) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act filed by the appellant for grant of anticipatory bail. The appellant is apprehending his arrest in connection with Crime No.159/2022 registered at Police Station dharnawada District Guna (MP) for the offence punishable under Sections 294, 323, 506, 34 of IPC and 2 sections 3(1)(r), 3(1)(s), 3(2)(va) of SC/ST Act.

As per prosecution story, on 9.5.2022 complainant Jagdesh Ahirwar made an oral complaint in Police Station Dharnavada to the effect that on 7.5.2022 he was going to Ruthia Market by his motorcycle. When the complainant reached near Oda Ki Puliya Tower in village Barodiya, then he met with Bhura @ Haricharan Yadav, who stopped the complainant and started abusing him and uttered filthy words relating to his caste due to previous enmity. When complainant refused to abuse him then the appellant started beating him and threatened to kill him. Hence, the FIR was registered against the present appellant in connection with Crime No.159/2022.

It is submitted by learned counsel for the appellant that appellant has not committed any offence. He has been falsely been implicated in this case. There is no involvement of the present appellant in the case. Only omnibus allegations are made against the appellant. It is further submitted that no case is made out against the appellant under SC/ST Act. Appellant is reputed citizen of the locality and if he is sent to jail then his social reputation would get diminish. It is submitted that looking to the contents of FIR as well as statement of the complainant ingredients of offence punishable under SC/ST Act are missing. The injuries cause to the injured are simple in nature. He relied upon the order dated 11.10.2018 passed in Cr.A. No. 7295 of 2018 (Atendra Singh Rawat vs. State of M.P.) wherein it has been observed as follows:

"Section 18 of the Atrocities Act has been reframed under Section 18 A (2) of the Amendment Act, 2018 whereby the provisions of Section 438 of Cr.P.C. and its applicability has been taken out from the purview of the Atrocities Act, notwithstanding any order or direction of any 3 Court. Still the power of judicial review and power to grant bail under Section 438 of Cr.P.C. if any offence is not made out prima facie, has not been curtailed and cannot be curtailed by any Act. Even otherwise, Article 21 of the Constitution of India wherein right to life and personal liberty are secured, no person can be debarred of such liberty at the instance of false complaint".

On these grounds, learned counsel for the appellant prayed to grant benefit of anticipatory bail to the appellant or directions be issued 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].

Learned State counsel opposed the prayer and prayed to reject this criminal appeal.

Heard learned counsel for the parties 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 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 4 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. 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."

I n view of above and considering the facts and circumstances of the 5 case, present criminal appeal is disposed of in the light of law laid down by Hon'ble Apex Court in the case of Arnesh Kumar (supra) with following directions:-

(i) that, the police may resort to the extreme step of arrest only when the same is necessary and the appellant fails to cooperate in the investigation.

(ii) that, the appellant should first be summoned to cooperate in the investigation. If the appellant cooperate in the investigation, then the occasion of their arrest should not arise.

Prosecution is hereby further directed to comply with the directions issued by Hon'ble Apex Court in the case of Arnesh Kumar (supra) in its letter & spirit.

With the aforesaid directions, the present appeal stands disposed of. Certified copy/ e-copy as per rules/directions.

(MILIND RAMESH PHADKE) V. JUDGE ahd MOHD Digitally signed by MOHD AHMAD DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, AHMA 2.5.4.20=76cd720db57b34b7642c7 0ed7eaf9b624f80d89cea07317bb14 d87e882cf0d0f, pseudonym=0545491E30B837BBD4 831C8E04A581DFFF305CD8, D serialNumber=F3F56CD397D8CD6A 76865A062F285CC6010CB90C4A13 B78A9AEC4BA8C65B56BA, cn=MOHD AHMAD Date: 2022.12.29 17:14:22 +05'30'

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