Madhya Pradesh High Court
Himanshu Shrivastava vs The State Of Madhya Pradesh on 26 August, 2021
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1 MCRC-41174-2021
The High Court Of Madhya Pradesh
MCRC-41174-2021
(HIMANSHU SHRIVASTAVA Vs THE STATE OF MADHYA PRADESH)
3
Gwalior, Dated : 26-08-2021
Heard through Video Conferencing.
Shri Sameer Kumar Shrivastava, learned counsel for the applicant.
Shri Sangam Jain, learned Public Prosecutor for the respondent-State.
Smt. Uma Kushwah, learned counsel for the complainant. This is first application under Section 438 of CrPC for grant of anticipatory bail.
Applicant is apprehending his arrest in connection with Crime No.582/2021 registered at Police Station Dabra City, District Gwalior (M.P.) for offences under Sections 498-A, 34, 406 of IPC and Section 3, 4 of the Dowry Prohibition Act.
It is submitted by learned counsel for the applicant- Himashu Shrivastava that the applicant has not committed any offence. He has falsely been implicated in the case. The applicant is the husband of the complainant. The marriage was solemnized on 19/11/2019. The applicant is a Government Servant posted at Mizoram on the post of Civil Engineer. Allegations leveled against the present applicant are false. It is further submitted that there is no misappropriation of car. All the registered offences are not punishable more than seven years. Hence, prays for grant of anticipatory bail to the applicant 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 as well as counsel for the complainant have vehemently opposed the submissions made by learned counsel for the applicant and submitted that the offence is registered under Sections 498-A, 34, 406 of IPC and Section 3, 4 of the Dowry Prohibition Act wherein the present applicant has committed cruelty with the complainant and also 2 MCRC-41174-2021 compelled to do virginity test. There is further demand of dowry of Rs.20 Lac by the applicant. It is further submitted that there is one criminal case registered against the the present applicant under Section 323, 324 of the IPC. Hence, prayed to reject this anticipatory bail application.
In reply, the present applicant has already been acquitted from the aforesaid case which was registered under Section 323 & 324 of the IPC. Till date, no documentary proof has been produced before this Court with regard to virginity test.
Heard learned counsel for the parties and perused the available record. The Supreme Court in the case of Arnesh Kumar (supra) has directed 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 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
3 MCRC-41174-2021 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."
In view of above and considering the facts and circumstances of the case, present anticipatory bail application is disposed of in the light of law 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 its letter & spirit.
E-copy/certified copy as per rules/directions.
(RAJEEV KUMAR SHRIVASTAVA) JUDGE pwn* Pawan Kumar 2021.08.26 17:02:08 +05'30'