Madhya Pradesh High Court
Arvind Singh Rajpoot vs The State Of Madhya Pradesh on 22 October, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.38805/2020
(Arvind Singh Rajpoot Vs. State of M.P.)
Gwalior, Dated:-22/10/2020
Heard through Video Conferencing.
Shri Sanjay Bahirani, learned counsel for the applicant.
Shri Rajesh Shukla, learned Deputy Advocate General for the
respondent/State.
Heard the learned counsel for the parties.
The applicant has filed this first application u/S.438 Cr.P.C. for grant of anticipatory bail as he has an apprehension of his arrest in connection with Crime No.419/2020 registered at Police Station Mungawali, District Ashoknagar for the offences punishable under Sections 3/7 of Essential Commodities Act, 1955.
It is submitted by the counsel for the applicant that the applicant has been falsely implicated in the case and he has not committed any offence in any manner. It is argued that as per the prosecution story the allegation against the present applicant is that he along with co-accused Santosh Rana, who was a salesman has not opened the shop and the stock and prices were not exhibited and a single customer has received the food stuff two or three times on a eligible slip. There were allegations of distributing the kerosene oil in-violation of the clause 10 which amounts to breach of condition, which are punishable under sections 3 and 7 of the Essential Commodities Act, 1955. It is argued that a writ petition was preferred 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) being W.P.No.843/2015 which was finally disposed of vide order dated 18.2.2015 with a direction to prefer an appeal before the Collector. In pursuance to the same, an appeal was preferred before the Collector, District Ashoknagar and the Collector, District Ashoknagar was pleased to set aside the order passed by the Sub Divisional Officer and the proceedings were dropped. It is submitted that thereafter no such proceedings and no action has been taken against the petitioner in pursuance to the offence registered in the year 2014. It is argued that the applicant has always cooperated in the investigation and has filed the litigation continuously on the basis of which initially the interim relief was granted to him by this Court and thereafter after disposal of the writ petition in the year 2018, on filing an appeal before the Collector, the proceedings were dropped which can be clearly seen from Annexure P/3. The learned Writ Court while disposing of the petition has granted liberty to the State Authorities to initiate fresh proceedings and after providing opportunity of hearing to the petitioner and decide the same in accordance with law. It is submitted that the issue with respect to offence under section 7 and 8 the Essential Commodities Act, 1955 whether are required to be treated as bailable or non-bailable was considered by the Division Bench of Gauhati High Court in the case of Shri Jayanta Kumar Das Vs. State of Assam and vide judgment dated 27.10.2017 considering 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) all the provisions and subsequent developments as well as the judgments of Hon'ble Supreme Court, the High Court of Gauhati has arrived at a conclusion that the offence under section 7 of Essential Commodities Act is bailable. It is submitted that this Court, Bench at Indore in M.Cr.C.No.26957/2020 (Rakesh Kumar Vs. State of M.P.) has also considered the similar aspect and by placing reliance upon the Division Bench judgment of High Court of Gauhati as well as other judgments has held that the offence under sections 3 and 7 of Essential Commodities Act, 1955 is bailable. It is submitted that all the arguments were put forth before the learned Trial Court along with the copies of the judgments, but the learned Trial Court has passed a very confusing order wherein no definite opinion regarding offence being bailable or non-bailable has been given and the application of the applicant is disposed of with a liberty to the respondent-police authorities that in case the offence is bailable then the bail bond be furnished or if they arrived at a conclusion that offence is non-bailable then appropriate proceedings be taken up against the applicant. It is submitted that applicant was working as Salesman and has having no direct nexus with the offence if so committed. He is ready to abide by all the terms and conditions that may be imposed by this court while considering the application for grant of bail. The applicant has shown his willingness to cooperate in the pandemic situation of 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) COVID-19 and is ready to contribute Rs.10,000/- in the account of High Court Bar Association, Gwalior for benefit of the lawyers during this COVID-19 scenario. Under these circumstances, counsel for the applicant prays for grant of anticipatory bail to the applicant.
Per contra, learned Deputy Advocate General appearing for the State has opposed the contention of the applicant and stated that the offence was registered in the year 2014, thereafter the proceedings were taken up against the applicant and the applicant has not cooperated in the investigated and remained absconded for a considerable period. It is submitted that even the writ petition filed was disposed of in the year 2015 and the appeal before the Collector was also disposed of in the year 2015, but despite of the same petitioner has not cooperated in the investigation. As far as question regarding the offence under section 3 and 7 of Essential Commodities Act, 1955 to be bailable and non-bailable is concerned, it is argued that there are judgments passed by the Court which can be taken into consideration. He has prayed for dismissal of the application as the other co-accused was granted the benefit of bail after he was arrested. It is contended that the similar treatment should be done with the present applicant also.
Heard the learned counsel for the parties and perused the record.
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THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) From the perusal of the record it is seen that the offence under section 3 and 7 of the Essential Commodities Act, 1955 is registered against the present applicant, who has admittedly working as a Salesman. There are allegations and the offence under section 3 and 7 of Essential Commodities Act, 1955 being bailable or non-bailable was considered by the Division Bench of Gauhati High Court in the case of Shri Jayanta Kumar Das Vs. State of Assam, (A.B.No.1205/2017) which reads as under:
"39. Having regard to the above and upon thorough consideration of the matter, we are of the considered opinion that the view taken by this Court in Kailash Kumar Agarwalla (supra) and followed subsequently including in the case of Hekm at Ali (supra) is the correct interpretation of the legal position vis- à-vis Sections 7 and 10 A of the EC Act. With utmost respect, for the reasons indicated above, we are unable to agree with the views expressed by the Bombay High Court in the case of Purthviraj Chandrakant Shinde (supra) and by the Orissa High Court in Usha Sinha (supra)."
The Division bench of Gauhati High Court has arrived at a conclusion that the offence under the provisions of Essential Commodities Act are to be treated as bailable offences. The similar 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) analogy was followed in the case of Rakesh Kumar Vs. State of M.P. by this Court, Bench at Indore in M.Cr.C.No.26957/2020. This Court has held as under:
"Thus, it becomes quite clear that the offence under Section 3/7 of the Essential Commodities Act is infact a bailable offence. However, as laid down by the Courts referred to above, the confusion is likely to prevail in the minds of the investigating agency who may not be aware of the correct legal position hence, anticipatory bail has been granted looking to such position."
As far as present matter is concerned, keeping in view that offence under Section 3/7 of the Essential Commodities Act is actually bailable in nature but still due to reasons mentioned earlier i.e. investigating agency may not be aware about the correct legal position, there is likelihood of arrest of the applicant. In the light of views expressed in the aforesaid citations with which I concur absolutely, application for grant of anticipatory bail is allowed in this matter." Taking into consideration the overall facts and circumstances of the case and also the fact that the offence under Essential Commodities is directed to be treated as bailable in certain circumstances and considering the case of Arnesh Kumar Vs. 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) State of Bihar, (2014) 8 SCC 273, this Court deems it appropriate to dispose of the application in the light of Arnesh Kumar's case.
However, looking to the fact that since the offence in question attracts punishment less than 7 years and therefore, in view of the principles laid down by the Hon'ble Supreme Court in the case of Arnesh Kumar (Supra), 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 do not cooperate in the investigation. The applicant should first be summoned to cooperate in the investigation. If the applicant cooperate 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 8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) 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 9 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) 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 subclauses (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 the Magistrate as aforesaid."10
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) 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 allow the application and 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 investigation. If the applicant cooperate in the investigation then the occasion of his arrest should not arise.
The applicant shall deposit Rs.10,000/- (Rupees Ten Thousand only) in the account of High Court Bar Association, Gwalior for the purpose of assistance and rehabilitation of those members of the Bar, who are facing financial distress due to Lockdown and restrictive functioning of the courts owing to ongoing COVID-19 pandemic, within seven days from today.
The applicant will inform the concerned S.H.O. of concerned Police Station about his residential address in the said area and it would be the duty of State Counsel to send E-copy of this order to SHO of concerned police station as well as concerned Superintendent of Police who shall inform the concerned SHO regarding the same. 11
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.38805/2020 (Arvind Singh Rajpoot Vs. State of M.P.) With the aforesaid directions, the present anticipatory bail application stands disposed of.
The applicant shall install Arogya Setu App in his mobile immediately and would intimate his place of residence to the S.H.O. of concerned Police Station; where he reside. The applicant further submits the undertaking to the effect that he will abide by the terms and conditions of different circulars, orders as well as guidelines issued by Central Government, State Government as well as Local Administration for maintaining social distancing, hygiene etc to avoid Novel Corona Virus (COVIC-19) pandemic.
E-copy/Certified copy as per rules/directions.
(Vishal Mishra) Judge Pawar* ASHISH PAWAR 2020.10.23 18:36:05 +05'30'