Madhya Pradesh High Court
Aabid Khan vs The State Of Madhya Pradesh on 25 March, 2021
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
The High Court Of Madhya Pradesh
MCRC-14450-2021
(AABID KHAN Vs THE STATE OF MADHYA PRADESH)
Gwalior, Dated:-25/03/2021
Shri A.K. Upadhyay, learned counsel for the applicants.
Shri Avneesh Singh, learned Public Prosecutor for the
respondent/State.
Shri H.K. Shukla, learned counsel for the complainant. I.A. No.8044/2021, an application for urgent hearing is taken up, considered and allowed for the reasons mentioned therein.
The applicant has filed this first bail application u/S.438 of Cr.P.C for grant of anticipatory bail.
Applicants are apprehending his arrest for the alleged offences registered at Crime No.80/2021 at Police Station Madhouganj, District Gwalior for the offence punishable under Sections 195A, 341, 323, 506 of I.P.C.
Learned counsel for the applicant -Aabid Khan submits that the applicant is innocent and he has not committed any offence. No cognizance has taken without filing the complaint under Section 195A of I.P.C. It is further submitted that earlier the complainant is aged around 50 years and executed one marriage agreement with the present applicant and the present applicant is aged around 26 years and now complainant of this case is going to harass/exploit the present applicant. It is also submitted that applicant is reputed citizens of the locality and if he is sent to jail then his social reputation would get diminished. As the aforesaid offences are not punishable more than 2 The High Court Of Madhya Pradesh MCRC-14450-2021 (AABID KHAN Vs THE STATE OF MADHYA PRADESH) seven years, hence, prayed to grant benefit 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 Public Prosecutor for the respondent/State as well as counsel for the complainant opposed the prayer and have submitted that the offence is registered under Sections 195A, 341, 323, 506 of I.P.C. wherein, the applicant has terrorized the complainant to compromise the earlier matter. It is further submitted that one M.Cr.C.No.13108/2021 has been filed before the co-ordinate Bench of this Court wherein notice has been issued for cancellation of bail which is granted in another case. Hence, prayed for rejection of this anticipatory bail application of the applicant.
Heard learned counsel for the parties and considered the arguments advanced by them and perused the record. The case is registered under Sections 195A, 341, 323, 506 of I.P.C. The copy of marriage agreement dated 26/10/2018 reflects that some marriage agreement was executed between the complainant and the present applicant.
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 3 The High Court Of Madhya Pradesh MCRC-14450-2021 (AABID KHAN Vs THE STATE OF MADHYA PRADESH) 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 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 4 The High Court Of Madhya Pradesh MCRC-14450-2021 (AABID KHAN Vs THE STATE OF MADHYA PRADESH) 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 CRA4936/2020 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, present 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 the Hon'ble Apex Court in Arnesh Kumar (supra) in its letter & spirit.
Certified copy as per rules.
(Rajeev Kumar Shrivastava) Judge Monika MONIKA SHARMA 2021.03.26 13:22:25 +05'30'