Madhya Pradesh High Court
Manjesh Kumar Tyagi vs The State Of Madhya Pradesh on 12 November, 2021
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
M.Cr.C. No.54829/2021
(Manjesh Kumar Tyagi & Anr. Vs. The State of Madhya Pradesh)
(1)
Gwalior, dated :12.11.2021
Shri Sanjay Bahirani, learned counsel for the applicants.
Shri Rohit Mishra, learned Additional Advocate General for
the respondent/State.
Heard learned counsel for the parties. Case diary perused.
This is the first application under Section 438 of the Code of Criminal Procedure filed for grant of anticipatory bail.
Applicants apprehend arrest in connection with Crime No.667/2021 registered at Police Station- Jaura, District Morena (M.P.) for the offences punishable under Sections 420, 272 & 273 IPC.
Allegation against the applicants, in short, is that when the Food Inspector visited the premises where the applicants were carrying out the business of food adulteration, 600 liters mix milk, 100 liters seperata milk, 16 tins refined palm kerenel oil, 7 kilogram mix unknown white powder in a bag, and 7 tins of unknown oil substance and 30 kg pure ghee and other items were found inside the house. It is alleged in the FIR that the same was going to be used for preparation of synthetic milk and, thereafter, would have been sold to general public. Thus, the applicants and other accused have cheated the general public at large. On the basis of aforesaid, crime has been registered.
HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No.54829/2021 (Manjesh Kumar Tyagi & Anr. Vs. The State of Madhya Pradesh) (2) Learned counsel for the applicants submits that the applicants have been falsely implicated in the case. The applicants are having GST registration certificate, valid license between the period 2019 to 2024 and they are also filing return regularly. It is further submitted that the applicants had not cheated any persons which may attract Section 420 IPC and other offences Section 272 & 273 are bailable in nature. Disposal of the matter will take long time. Learned counsel for the applicants further submitted that in view of COVID-19 outbreak, detention of applicants in already congested prisons may be detrimental. Applicants are ready to abide all the conditions, which may be imposed by the Court. They are ready to cooperate in the investigation. It is submitted that applicants are permanent resident of District Morena (M.P.) and there is no likelihood of absconsion or tampering with the prosecution evidence. With the aforesaid submissions prayer for grant of anticipatory bail is made.
On the other hand, learned Additional Advocate General for the respondent/State opposed the anticipatory bail application and prays for its rejection. It is further submitted that certain quantity of adulterated milk products have been confiscated from the possession of applicants and by preparing the adulterated milk products applicants have been continuously cheating the general public at large.
HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No.54829/2021 (Manjesh Kumar Tyagi & Anr. Vs. The State of Madhya Pradesh) (3) However, in the case of Arnesh Kumar Vs. State of Bihar ((2014) 8 SCC 273), it has been directed by the Apex Court that in offences involving punishment up to 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 applicants should first be summoned to cooperate in the investigation. If the applicants cooperates in the investigation, then the occasion of their 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 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No.54829/2021 (Manjesh Kumar Tyagi & Anr. Vs. The State of Madhya Pradesh) (4) 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."
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 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No.54829/2021 (Manjesh Kumar Tyagi & Anr. Vs. The State of Madhya Pradesh) (5) arrest only when the same is necessary and the applicants fail to cooperate in the investigation. (2) That, the applicants should first be summoned to cooperate in the investigation. If the applicants cooperates in the investigation, then the occasion of their arrest should not arise.
The applicants shall also furnish a written undertaking before the SHO concerned that they will abide by the terms and conditions of various circulars, as well as, orders issued by the Central Government, State Government and local administration from time to time such as maintaining social distancing, physical distancing, hygiene etc. to avoid proliferation of Corona virus.
With the aforesaid directions, the present anticipatory bail application stands disposed of.
A copy of this order be sent to the trial Court concerned for compliance.
Certified copy as per rules.
(S.A.Dharmadhikari) Judge vpn VIPIN KUMAR AGRAHARI 2021.11.12 13:57:46 +05'30' VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00'