Madhya Pradesh High Court
Tarlochan Singh vs The State Of Madhya Pradesh on 6 August, 2021
Author: Sheel Nagu
Bench: Sheel Nagu
1 Mcrc.30328.2021
The High Court of Madhya Pradesh
Mcrc.30328.2021
(Tarlochan Vs. State of M.P.)
Gwalior dated 06.08.2021
Shri Sankalp Sharma, learned counsel for petitioner.
Shri Kaushalendra Singh Tomar, learned Public Prosecutor
for respondent/State.
Heard through video conferencing.
Case-diary is read over by the State Counsel. This is first application u/S.438 Cr.P.C. for grant of anticipatory bail by the petitioner.
Petitioner apprehends arrest in connection with offence punishable u/Ss.420, 168 IPC and Secs.3, 6 of Madhya Pradesh Nikshepakon Ke Hiton Ka Sarankshan Adhiniyam, 2000 ["2000 Act" for brevity] and u/S.45-IA, 45-S/58B(5-A) of RBI Act registered as Crime No.256/2011 by Police Station Inderganj, District Gwalior (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 apprehends arrest in respect of offence of cheating and other ancillary offences where the allegation against petitioner is that petitioner being director of the financial establishment obtained deposits from complainant and other persons with the promise to return the same in multiplied form. The promise was not kept and therefore the offence as alleged is registered against petitioner.
2 Mcrc.30328.2021 Prima faice, we are of the opinion that the offence as alleged appears to be made out and therefore in view of the statutory bar contained u/S.14 of 2000 Act, no case for grant of anticipatory bail to petitioner is made out.
However, looking to the fact that since the offence in question attracts punishment upto 7 years and therefore, in 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 petitioner 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
3 Mcrc.30328.2021 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 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 4 Mcrc.30328.2021 be subject to the same scrutiny by he 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 07.06.2021 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 the petitioner fails to cooperate 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 07.06.2021, the present anticipatory bail application stands disposed of.
A copy of this order be sent to the trial Court for necessary compliance.
(Sheel Nagu) (S.A. Dharmadhikari)
Judge Judge
pd
PAWAN Digitally signed by PAWAN DHARKAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH DHARK COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=345b3604d572ed9dd1492fe82dc 3b1eef67eff2cb59f3ac97e920ac264de782 AR 8, cn=PAWAN DHARKAR Date: 2021.08.09 10:50:34 +05'30'