Madhya Pradesh High Court
Vinod Sharma vs The State Of Madhya Pradesh on 9 October, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 9 th OF OCTOBER, 2023
MISC. CRIMINAL CASE No. 44855 of 2023
BETWEEN:-
VINOD SHARMA S/O SHRI BAIJNATH SHARMA, AGED-
35 YEARS, OCCUPATION: UNEMPLOYED R/O
PACHBEEGHA ROAD TYAGI KATRA WARD NO 8 JOURA
DISTRICT MORENA (MADHYA PRADESH)
.....APPLICANT
(BY SHRI RAJMANI BANSAL- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH INCHARGE POLICE
STATION THROUGH POLICE STATION KOTWALI
DISTRICT MORENA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI K.S. TOMAR- GOVERNMENT ADVOCATE )
This application coming on for hearing this day, the court passed the
following:
ORDER
The applicant has filed this first application under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail.
Applicant apprehends his arrest in connection with Crime No.628 of 2023 registered at Police Station Kotwali, District Morena for the offence punishable under Sections 420, 419, 468, 471 of the Indian Penal Code.
The case of the prosecution in nutshell is that on a complaint made by District Education Officer, Morena/complainant, to the Police Station, Kotwali, Morena alleging that about 77 persons have obtained Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM 2 appointments on the post of Samvida Shala Shikshak on the basis of forged disability certificates, FIR vide crime no.628/2023 was lodged against the present applicant and other co-accused persons for the Offence punishable under Sections 420, 419, 468, 471 of IPC at Police Station Kotwali, District Morena on 21.06.2023. Apprehending his arrest, the present applicant has preferred this application under Section 438 of Cr.P.C.
Learned counsel for the applicant at the outset has submitted that the crime which has been registered against the applicant mentions of the offence of which the maximum sentence therein is up to seven years and in the light of the Arnesh Kumar vs. State of Bihar and Another reported in 2014 (8) SCC 273, wherein directions have been issued to the police authorities not to make unnecessary arrest in the offences where offences were punishable with imprisonment for a term which may be less than seven years or which may extend upto seven years whether with or without fine, the applicant is entitled for enlargement on bail in the event of his arrest. It was further argued that the Coordinate Bench of this Court in the matter of Zarina Begum vs. State of M.P. through P.S. E.O.W. passed in M.Cr.C. No.30933/2020 dated 13.05.2021 had passed a detailed order, wherein apart from the judgment of Arnesh Kumar (supra) other judgments and the case law as developed as on date on this issue has been discussed and the Coordinate Bench was pleased enough to grant anticipatory bail to an accused of an offence punishable under Section 420, 467, 468, 471, 472, 474 r/w Section 120B of IPC. It was further argued that where for an offence, the maximum imprisonment provided is 7 years or upto 7 years, Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM 3 the accused shall not be arrested by the police as an ordinary course of action, unless it is under a special statute mandating such an arrest or if the police finds it expedient to arrest such an accused, then before effecting any arrest in such case, it is required to record its reasons and then only the arrest could be made.
O n the strength of the above arguments as well as the judgments cited, it was prayed that the present petitioner/applicant deserves to be enlarged on anticipatory bail in the event of his arrest.
Per contra, Shri K.S. Tomar, learned Government Advocates submits that it is a case where 77 persons have been found to have procured false and fabricated disability certificate on the basis of which they have procured appointment on the post of Samvida Shala Shikshak. It was further argued that upon verification of the said documents all the documents have been found not to be registered at District Hospital, Morena from where they are stated to have been issued, report in that regard has already been received. It was further argued that since the offence which has been committed by the present applicant prima-facie appears to have been committed by the applicant, therefore, the benefit of the guidelines as laid down by the Hon'ble Apex Court in the matter of Arnesh Kumar (Supra) should not be granted to him as his custodial interrogation is necessary to unearth as to how the document was procured and with whose help? It was further argued that due to the forgery committed by the applicant, the genuine candidates have lost their chance to get the appointment which is a crime towards society and the same should Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM 4 not be tendered lightly and a message should go to the society that such kind of persons would not be spared and would be taken to task so that in future such an act may not be repeated/committed by any other person. It was further argued that though the offences as mentioned in the FIR appears to have been registered under Sections 420, 419, 468, 471 of IPC, but from the body of the FIR it is seen that the police has taken cognizance under Sections 420, 467, 468, 471/34 of IPC and since the maximum punishment as provided under Section 467 is imprisonment for life or with imprisonment of either description for term which may extend to ten years or shall also be liable to fine, the reliance placed in the matter of Arnesh Kumar (supra) is of no consequence as the aforesaid judgment only speaks with regard to the cases where offences are punishable with imprisonment for a term which may be less than 7 years or which may extend upto 7 years whether with or without fine.
It was further contended that the reliance placed by the applicant in the matter of Zarina Begum (supra) is totally misplaced as the accused there in was not the main accused/beneficiary and she was only the person i n whose favour a sale-deed has been executed by the main accused that too 31 years prior to the registration of the crime and in that context the Coordinate Bench after considering the nature of the evidence, the antecedents of the offender and the circumstances in which the offence was committed, had granted anticipatory bail, which is not the case in the present matter, here the applicant is the person, who had secured employment on the basis of a forged document which was never issued by Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM 5 the authority from which it is so stated to have been issued. Thus, he is the main beneficiary who had gained out of the said document and prima facie it has been found that the said document which is in the form of disability certificate was never issued from the District Hospital, Morena. In the light of the aforesaid factual matrix, it was prayed that the present bail application deserves to be dismissed.
After hearing the rival contentions and perusing the case diary, this Court finds that the offence appears to have been registered against the present applicant under Sections 420, 419, 468, and 471 of IPC, though cognizance had been taken on the complaint received from the District Education Officer, Morena under Sections 420, 467, 468, 471/34 of IPC. For the contention of the Government Counsels that since cognizance u/S 467 IPC had been taken by the police while registering the FIR, for which the maximum sentence is life, the applicant is not entitled for anticipatory bail, is concerned, it is required by the police during investigation or by the Trial Court as the case may be, to analyze as to whether the disability certificate, found to be forged is a valuable security and would therefore, attract the provisions of Section 467 IPC or not, as the Section provides that whoever forges any valuable security or an authority of the specified kind or any documents purported to be in acquittance on receipt acknowledging payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be liable to be punished under the said Section.
In the aforesaid premise, prima facie the contention of the Counsels' Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM 6 for the State does not appear to be justified so far as punishment under Section 419 of IPC is concerned, it may be extended to three years or with fine or with both, with regard to Section 420 of IPC the sentence may extend to 7 years and shall may also be liable to fine, Section 468 of IPC also provided for a maximum sentence which may extend to 7 years or shall also liable to fine and under Section 471 of IPC punishment is for the period as provided for committing forgery.
I n the case of Arnesh Kumar (supra), it has been directed by the Ap e x Court 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 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 occassion 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;Signature Not Verified
or for proper investigation of the case; or to Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM 7 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 need 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 of Cr.P.C.
9. Another provision i.e. Section 41-A of 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 a l l cases where the arrest of a person is not required under Section 41 (1) Cr.P.C., the police Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM 8 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.
Likewise in the matter of Zarina Begum (supra) in para 33 and 34 the Coordinate Bench has held as under :
3 3 . As regards the grant of bail in offences involving punishment of more than seven years imprisonment, there can be no universal rule of thumb. It would defeat the very purpose of bail law, if bail were to be rejected only on account of the offence being heinous in nature. Weather an offence is heinous in nature is a matter of perception but, it would be reasonable to include in its ambit and scope such offences, which shock the conscience of a reasonable person. Again, bail cannot be denied merely because the allegations relate to the commission of a heinous offence. The nature of the evidence, the antecedents of the offender, the circumstances in which the offence was committed etc., are also to be considered. However, what the Courts must consciously exclude is the cacophony of hyper opinionated and unmoderated voices on social, print and electronic media. Public perception must never be a factor while deciding a bail application. At the same time, prudent reasons ought to be briefly given to reflect the mind of the Court while deciding the application for bail.Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM 9
34. While considering an application for bail, the following may be kept in mind;
34A. Whether, granting bail to the under-trial would result in him attempting to overawe and influence the witness or influence the course of investigation, either by threat of dire consequences or by monetary inducement?
34B. Whether, the probability of the under-trial, upon his release, committing another crime while on bail, would be germane while considering grant of bail to recidivists or repeat offenders? 34C. Whether, there is a probability upon the release of the accused on bail that he would fall victim of any vengeful action by the Complainant?
34D. Whether, the release of the accused on bail would raise a reasonable apprehension of breach of peace, and social or civil unrest, on account of the nature of the offence alleged against him?
34E. Whether, the accused would destroy the evidence yet to be collected during investigation, upon his release on bail?
34F. Whether, the overwhelming nature of prima facie evidence against the accused is such that he may be tempted to abscond and evade the process of justice all together if he is enlarged on bail? Looking to the overall facts an circumstances of the case 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 applicant fails to cooperate in the investigation.
ii) That, the applicant should first be summoned to cooperate in the Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM 10 investigation. If the applicant cooperates in the investigation, then the occassion of his arrest should not arise.
With the aforesaid directions, the present anticipatory bail application stands disposed of.
CC as per rules/directions.
(MILIND RAMESH PHADKE) JUDGE Chandni Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 10-Oct-23 11:48:42 AM