Madhya Pradesh High Court
Mohammad Sahil Khan vs The State Of Madhya Pradesh on 4 August, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.25707/2020
(Mohammad Sahil Khan Vs. State of M.P.)
Gwalior, Dated:-4/8/2020
Shri R.P. Gupta, learned counsel for the applicant.
Shri Rajesh Shukla, learned Deputy Advocate General for the
respondent/State.
In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsel through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.
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.42/2020 registered at Police Station Pichhor, Gwalior for the offences punishable under Sections 3/4 of Dowry Prohibition Act.
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 the submitted by learned counsel for the applicant that there is no criminal past of the applicant. He is ready to cooperate with the investigation and prayed 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.25707/2020 (Mohammad Sahil Khan Vs. State of M.P.) that application may be allowed in terms of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273. The applicant has shown his willingness to contribute an amount of Rs.5,000/- towards the PM Care Fund.
Per contra, learned counsel for the State has opposed the application for grant of anticipatory bail to the present applicant.
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 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.25707/2020 (Mohammad Sahil Khan Vs. State of M.P.) 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.4
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.25707/2020 (Mohammad Sahil Khan Vs. State of M.P.) 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. 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 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.25707/2020 (Mohammad Sahil Khan Vs. State of M.P.) 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 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.5000/- in PM CARES Fund having Account Number: 2121PM20202, IFSC Code:
SBIN0000691, SWIFT Code : SBININBB104, Name of Bank & Branch : State Bank of India, New Delhi Main Branch 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 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.25707/2020 (Mohammad Sahil Khan Vs. State of M.P.) SHO of concerned police station as well as concerned Superintendent of Police who shall inform the concerned SHO regarding the same.
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 of this order be provided to the applicant and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.
(Vishal Mishra) Judge Pawar* ASHISH PAWAR 2020.08.04 18:39:17 +05'30'