Madhya Pradesh High Court
Fakruddin Khan vs The State Of Madhya Pradesh on 21 November, 2019
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
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HIGH COURT OF MADHYA PRADESH
Cr.A. No.9648/2019
(Fakruddin Khan Vs The State of M.P. & Another)
Gwalior, Dated : 21.11.2019
Shri Rajendra Singh Yadav, learned counsel for the appellant.
Shri K.P.S.Sengar, learned Public Prosecutor for the
respondent/State.
None for respondent No.2/complainant.
Present appeal has been filed under Section 14-A (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity 'the Atrocities Act') against the order dated 07.11.2019 passed by Special Judge (Atrocities), Gwalior, whereby the application of the appellant under Section 438 of Cr.P.C. seeking anticipatory bail has been rejected in connection with Crime No.805/2019 registered at Police Station Bahodapur, District Vidisha for the offences under Sections 323 and 354 of IPC and Section 3(1) (w) (8) and 3 (2)(va) of SC/ST Act.
It is submitted by counsel for the applicant that the applicant has been falsely implicated in the offence and he has not committed any offence. The complainant herself has taken obscene photographs of the applicant and she is blackmailing the present applicant. It is also submitted that the applicant is a reputed person and there is no possibility of his fleeing away from justice, hence prays for grant of anticipatory bail.
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HIGH COURT OF MADHYA PRADESH Cr.A. No.9648/2019 (Fakruddin Khan Vs The State of M.P. & Another) In support of his contention, learned counsel for the applicant placed reliance on a decision rendered by the Apex Court in the case of Gorige Pentaiah Vs. State of A.P. And others (2008 (5) M.P.H.T. 247 (SC) wherein the Apex Court held as under:-
"In the instance case, the allegation of respondent No.3 in the entire complaint is that on 27.05.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No.3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No.3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."
Leaned Public Prosecutor for the respondent/State opposed the application and prayed for its rejection by contending that on the basis of allegation and material available on record, no case for grant of bail is made out.
Heard the counsel for the parties and perused the case diary. However, considering the principles laid down by the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 3 HIGH COURT OF MADHYA PRADESH Cr.A. No.9648/2019 (Fakruddin Khan Vs The State of M.P. & Another) 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 applicant does not cooperate in the investigation. The applicant should first be summoned to cooperate in the investigation. If the applicant 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 4 HIGH COURT OF MADHYA PRADESH Cr.A. No.9648/2019 (Fakruddin Khan Vs The State of M.P. & Another) 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 arrest only when the same is necessary and the applicant fails to cooperate in the investigation.
(2) That, the applicant should first be summoned to cooperate in the investigation. If the applicant cooperates in the investigation, then the occasion of his arrest should not arise.5
HIGH COURT OF MADHYA PRADESH Cr.A. No.9648/2019 (Fakruddin Khan Vs The State of M.P. & Another) With the aforesaid directions, the present anticipatory bail application stands disposed of.
A copy of this order be sent to the Court concerned for compliance.
Certified copy as per rules.
(Rajeev Kumar Shrivastava) Judge SP SANJEEV KUMAR PHANSE 2019.11.22 15:30:07 +05'30'