Madhya Pradesh High Court
Harendra Jatav vs The State Of Madhya Pradesh on 9 July, 2021
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
M.Cr.C. No. 32249/2021
( Harendra Jatav Vs The State of M.P. )
(1)
Heard through video conferencing.
Gwalior, dated : 09/07/2021
Shri Sameer Kumar Shrivastava, learned counsel for the
applicant.
Shri Ravindra Singh Kushwah, learned Deputy Advocate
General for the respondent-State.
IA No. 19262/2021, an application for urgent hearing, is allowed.
Heard learned counsel for the parties.
Case diary perused.
This is first bail application under Section 438 of the Cr.P.C preferred for grant of anticipatory bail.
Applicant apprehends arrest in connection with Crime No. 89/2021 registered at Police Station Gohad District Bhind (M.P.) for the offences punishable under Sections 353, 332, 341, 336, 294, 427, 506, 147 and 149 of the IPC Read With Section 3 of Prevention of Damage to Public Property Act, 1984.
Prosecution story in short is that on 22/03/2021 present applicant alongwith co-accused Prashant Jatav, Javed Khan and 3-4 other persons obstructed the public servant from discharging their duties and further tried to assault the police personnel. On the aforesaid basis, crime has been registered.
Learned counsel for the applicant submits that he has falsely been implicated in the matter. A false case has been registered against the present applicant and other co-accused persons to cover up the misdeed of the police personnel. The background of lodging the FIR against the applicant is that on 21/03/2021, applicant tried to HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No. 32249/2021 ( Harendra Jatav Vs The State of M.P. ) (2) lodge the FIR of the incident which took place with Dipesh Goyal but under the influence of local contractor, the case was not registered against the accused persons. Another incident took place on 22/03/2021 in which two family members of the applicant died on the spot in the incident. Again the police was not registering the FIR under influence of the local contractor. When the public at large was demonstrating on the road, police falsely implicated the present applicant who was helping the victim. The report of this incident was also published in the newspaper. When the police apprehended that things are getting out of their hands then both the FIR at Crime No. 87/2021 and Crime No. 88/2021 were registered. For taking the revenge, police personnel registered present offence at Crime No. 89/2021 against the present applicant and other co-accused persons. There is no injury to any police personnel. Offence under Section 304 of the IPC ought to have been registered but the police deliberately in connivance with local contractor registered offence under Section 304-A of the IPC. Nothing is to be recovered from possession of the applicant. It is a pure case of false implication and all the offences are punishable up to three years,therefore, he may be extended benefit of anticipatory bail in the light of Arnesh Kumar Vs. State of Bihar ((2014) 8 SCC 273). Learned counsel for the applicant further submitted that in view of COVID-19 outbreak, detention of applicant in already congested prison may be detrimental. It is submitted that applicant is permanent resident of HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No. 32249/2021 ( Harendra Jatav Vs The State of M.P. ) (3) District Gwalior (M.P.) and there is no likelihood of absconsion or tampering with the prosecution evidence. With the aforesaid submissions prayer for grant of anticipatory bail is made.
On the other hand, learned Deputy Advocate General opposed the prayer for grant of anticipatory bail 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. It is submitted that applicant has no right to take the law in his own hands but could have filed complaint before the higher authority. He mishandled police personnel and interfered in their official duties. In MLC report, one contusion and one abrasion has been noticed on one of the police personnel. The police vehicle was also got damaged. Investigation is pending and custodial interrogation may be required in the matter, therefore, prays for rejection of anticipatory bail.
However, in the case of Arnesh Kumar Vs. State of Bihar ((2014) 8 SCC 273), it has been directed by the Apex 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 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:-
HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No. 32249/2021 ( Harendra Jatav Vs The State of M.P. ) (4) 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 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 vitalised.
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 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No. 32249/2021 ( Harendra Jatav Vs The State of M.P. ) (5) 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."
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 direct thus:-
(1) 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. (2) That, the applicant should first be summoned to cooperate in the investigation. If the applicant cooperates in the investigation, then the occasion of his arrest should not arise.
The applicant shall furnish a written undertaking before the SHO concerned that he will abide by the terms and conditions of various circulars, as well as, orders issued by the Central Government, State Government and local administration from time to time such as maintaining social distancing, physical distancing, hygiene etc. to avoid proliferation of Corona virus.
With the aforesaid directions, the present anticipatory bail application stands disposed of.
Certified copy/e-copy as per rules/directions.
(S.A.Dharmadhikari) Judge Prachi* PRACHI MISHRA 2021.07.11 22:37:23 +05'30'