Bharat Rajput And Anr vs State Of M.P

Vishal Mishra, J

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.

Counsel for the applicants at the outset prays for withdrawal of the application on behalf of applicant No.1 Bharat Rajput. The same is dismissed as

withdrawn.

Heard the learned counsel for the parties with respect to applicant No.2 Ravi Rajput.

The applicant No. 2 Ravi Rajput has filed this first application under section 438 of the Cr.P.C. for grant of bail.

The applicant apprehends his arrest in Crime No.353/2020 registered by Police Station Indergadh, District Datia for offence punishable under Sections

354, 294, 34 of IPC.

It is alleged that the applicant has been falsely implicated in the case. He has not committed the offence in any manner. The allegation as per the

prosecution story is that on 01.12.2020 in the evening at 7.00 pm at Village Ranipura when prosecutrix was at home and her father was standing

outside of the house, the applicant No.2 Ravi Rajput abused to her father. There is no allegation of 354 against the present applicant. The applicant is

ready to abide by all the terms and conditions that may be imposed by this Court.

Per contra, counsel for the State opposed the application and prayed for rejection of anticipatory bail application. However, he fairly submits that the

applicant No.2 has no criminal history as per the case diary.

Considering the overall facts and circumstances of the case, this Court deems it appropriate to dispose of this application in the light of Arnesh Kumar

vs. State of Bihar and ors., reported in (2014) 8 SCC 273.

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 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/her 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 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 fail 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 No.2 Ravi Rajput 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 SHO of concerned police station as well as Superintendent of Police, District Datia

who shall inform the concerned SHO regarding the same.

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

The applicant No.2 shall install Arogya Setu App in his mobile immediately and would intimate his place of residence to the SHO of concerned Police

Station; where he resides. The applicant further submit 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 send 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 as per rules.