Ashok Kumar Tundele vs State Of Madhya Pradesh

Vishal Mishra, J

The applicant has filed this first application under section 438 of the Cr.P.C. for grant of bail.

The present first application under Section 438 of Cr.P.C for anticipatory bail as he has an apprehension of his arrest in connection with Crime No.

66/2021 registered at Police Station Myana, Distt. Guna for the offences punishable under Section 3/7 of Essential Commodities Act, 1955.

It is submitted that as per the prosecution story, the allegation against the present applicant is of committing misappropriation of stock/grains in fair

price shop where the immediate inspection was made by the Assistant Food Supply Officer and he has not found the stock as per POS Machine. In

such circumstances, he has made complaint to the Police authorities against the present applicant. On the basis of which, the aforesaid offences have

been registered against him. Applicant has no criminal antecedent. He is ready to cooperate with the investigation and prayed that application may be

allowed in terms of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273.

Learned Public Prosecutor opposed the application and prayed for its rejection by contending that there are specific allegations against the present

applicant and looking to the material available on record, he is not entitled for grant of bail. He is still absconding and is not cooperating in the

investigation, but he fairly submits that as per case diary, he is having no criminal history.

Considering the overall facts and circumstances of the case and looking to the pandemic situation of COVID-19 and coupled with the fact that

offence under Section 3/7 of E.C. Act is being registered against the present applicant and also 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 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 does 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 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 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 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 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 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 anticipatory bail application is allowed subject to verification of the fact that there is no criminal antecedent against the present applicant.

With the aforesaid directions, the present anticipatory bail application stands disposed of.

E- copy of this order be provided to the applicants 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.

Certified copy/ e-copy as per rules/directions.