Madhya Pradesh High Court
Devendra Kumar Sharma vs The State Of Madhya Pradesh on 31 July, 2019
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.31242/2019
(DEVENDRA KUMAR SHARMA Vs THE STATE OF MADHYA PRADESH)
Gwalior, Dated : 31/07/2019
Shri Pradeep Katare, learned counsel for the applicant.
Shri Vikrant Sharma, learned Public Prosecutor for the
respondent/State.
This is the first application under Section 438 of the Cr.P.C filed by the applicant, who apprehend his arrest in connection with Crime No.134/2019, registered at Police Station Malanpur, District Bhind (M.P.), for the offences punishable under Sections 354-d and 506-B of IPC.
Learned counsel for the applicant submits that the applicant has been falsely implicated in the present case. It is also submitted by counsel for the applicant that the offences registered under Section 354-d and 506-B of IPC are bailable offence. He has drawn attention of this Court to the definition of 354-A which is held as under:-
354A. Sexual harassment and punishment for sexual harassment.-(1) A man committing any of the following acts-
(i)physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii)a demand or request for sexual favours; or
(iii)showing pornography against the will of a woman; or THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.31242/2019 (DEVENDRA KUMAR SHARMA Vs THE STATE OF MADHYA PRADESH)
(iv)making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
(2)Any man who commits the offence specified in clause(i) or clause (ii) or clause
(iii) of sub-section(1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3)Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
It is pointed-out under said offence maximum punishment is up of three years or fine or with both, they are cognizable offence and triable by any Magistrate. It is further submitted by the counsel for the applicant that the applicant is the permanent resident of Girraj Market Malanpur, District Bhind, therefore, prayed for grant of bail application. It is submitted by the counsel for the applicant that although the application has been rejected but offences are bailable and now the Police Authorities are not permitting the applicant to furnish the bail bonds, hence prays for disposing the bail application in the light of directions issued by the Hon'ble Supreme Court in the case of Arnesh Kumar.
Learned Public Prosecutor for the respondent/State opposed THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.31242/2019 (DEVENDRA KUMAR SHARMA Vs THE STATE OF MADHYA PRADESH) the prayer and submitted that though the offences are bailable, application under Section 438 is not maintainable and prayed for dismissal of application.
Heard learned counsel for the parties and perused the case diary.
It is seen that trial Court has rejected the bail on the ground that the offence is of grievous nature. But considering that anticipatory bail is barred for bailable offence and the applicant is required to furnish the bail-bond before the concerning Authority.
Keeping into consideration the aforesaid facts, that maximum punishment is only three years, therefore, looking to the fact that since the offence in question attract punishment less than 7 years and therefore, in view of the principles laid down by the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273, it is 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 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.31242/2019 (DEVENDRA KUMAR SHARMA Vs THE STATE OF MADHYA PRADESH) 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 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 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.31242/2019 (DEVENDRA KUMAR SHARMA Vs THE STATE OF MADHYA PRADESH) 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:-
(i) That, the police may resort to the extreme step of arrest only when the same is necessary and the appellants fails to cooperate in the investigation.
(ii) that, the appellants should first be summoned to cooperate in the investigation. If that appellants cooperate in the investigation then the occasion of their arrest should not arise.
With the aforesaid directions, the present anticipatory bail application stands disposed of.
C.C. As per rules.
(Vishal Mishra) JUDGE vpn VIPIN KUMAR AGRAHARI 2019.08.01 10:37:05 +05'30'