Madhya Pradesh High Court
Prem Singh Yadav vs The State Of M.P. on 30 June, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
1
THE HIGH COURT OF MADHYA PRADESH
CRA-3639/2020
(Prem Singh and others Vs. State of M.P.)
Gwalior, Dated 30/06/2020
Shri A.S. Jadon, learned counsel for appellants.
Shri A. S. Ghuraiya, Public Prosecutor for respondent/State.
Learned counsel for the State informs that due intimation to the victim has been sent through office of the Addl. Advocate General but despite service of notice, no one appears.
Case Diary is perused.
Learned counsel for the rival parties are heard. The present appeal u/S 14A of SC/ST (Prevention of Atrocities)Act assails the order dated 18/06/2020 passed by Special Judge(Atrocities) Distt. Guna whereby application preferred by the appellants herein u/S 438 Cr.P.C. has been rejected.
Appellants apprehend arrest in connection with offences punishable u/Ss. 341, 294, 323, 427, 506/34 of IPC and u/S. 3(1)(r), 3(1)
(s) and 3(2) (va) of SC/ST (Prevention of Atrocities) Act, 1989 registered as Crime No.281/2020 at Police Station Dharnavada, District Guna.
Learned Public Prosecutor for the State opposed the appeal and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of anticipatory bail is made out.
Appellants who are three in number are alleged with causing 2 lathi/lohangi blow on non-vital part of body of injured. There is allegation of using abusive language against member of SC/ST community, the complainant.
Looking to the allegation made against the appellants, prima facie offence punishable under the SC/ST (Prevention of Atrocities) Act seems to be made out and therefore, bar contained u/Sec.18 of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act comes in way of petitioner and thus present bail application is not maintainable.
However, looking to the fact that since the offence in question attracts punishment upto 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 appellant does not co-operate in the investigation. The appellant should first be summoned to co-operate in the investigation. If the appellant co-operates in the investigation then the occasion of her 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 3 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 vitalized. 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 he Magistrate as aforesaid.
In view of above and considering the principles laid down by the 4 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 fail to cooperate in the investigation.
(ii) That, the appellants should first be summoned to cooperate in the investigation. If the appellants co-operate in the investigation then the occasion of their arrest should not arise.
With the aforesaid directions, the present appeal stands disposed of.
C.c. as per rules.
(Sheel Nagu) Judge Digitally signed by SUNEEL DUBEY Date: 2020.06.30 21:00:06 -07'00'