Madhya Pradesh High Court
Jasbant Singh Gurjar vs The State Of Madhya Pradesh on 5 May, 2021
Author: Sheel Nagu
Bench: Sheel Nagu
1 The High Court of Madhya Pradesh MCRC- 21885-2021 (Jasbant Sing Gurjar Vs. State of Madhya Pradesh ) Gwalior, Dated:05/05/2021 Shri D.S. Tomar, learned counsel for the petitioner. Shri K.S. Tomar, learned Panel Lawyer for the State. Learned counsel for the rival parties are heard through video conferencing.
Case-diary is perused.
Petitioner has filed this first application u/S.438 Cr.P.C. for grant of anticipatory bail.
Petitioner apprehends arrest in connection with offence punishable u/Ss.379 & 414 of IPC registered as Crime No.34/2021, by Police Station Haidargarh, District Vidisha (M.P.).
Learned counsel for the State opposed the application 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.
Petitioner apprehend arrest in respect of offence theft and assisting in concealment of stolen property. The subject matter of theft is unlawfully quarried sand. The petitioner was not present at the place of incident.
Looking to the fact that the offence involved impacts adversely upon the environment, this Court, for the time being declines anticipatory bail to the petitioner.
However, looking to the fact that since the offence in question attracts punishment less than 7 years and therefore, in 2 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 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 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 3 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 subclauses (a) to (e) of clause (1) of Section 41 Cr.P.C.
9. Another provision, i.e. 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-A 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 Sec. 41-A 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 without interfering in the impugned order dated 22.04.2021 passed by the Court below is inclined to direct thus:-
(i) that, the police may resort to the extreme step of arrest only when the same is necessary and 4 the petitioner fails to co-operate in the investigation.
(ii) that, the petitioner should first be summoned to cooperate in the investigation. If that petitioner cooperates in the investigation then the occasion of his arrest should not arise.
Subject to above modification in the order of the trial court dated 22.04.2021 this bail application stands disposed of.
A copy of this order be sent to the trial Court for necessary compliance.
(Sheel Nagu) Judge vpn VIPIN Digitally signed by VIPIN KUMAR AGRAHARI DN: c=IN, o=High Court Of Madhay Pradesh Bench Gwalior, ou=all, KUMAR 2.5.4.20=ba9f628dc9a78be87be1fa639319d6438 31453fb2787ea87394b7febf7a6def2, postalCode=474011, st=MADHYA PRADESH, serialNumber=64bf959b6ffdeef8e12c62166740b3 c771ffbcb05102395b93dc7fb337059a94, AGRAHARI cn=VIPIN KUMAR AGRAHARI Date: 2021.05.06 13:08:07 +05'30'