Bhawani @ Rakesh vs State Of M.P

S.A.Dharmadhikari, J

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.. 605/2020 registered at Police Station Excise District Sheopur (M.P.) for the offences

punishable under Sections 34(1)(2) & 49(1) of the MP Excise Act.

According to the prosecution case, on an information given by an informer, the police reached at the house of the applicant and seized 63 ltr. of

country made liquor from house of the applicant. On the basis of aforesaid, crime has been registered against the applicant.

Learned counsel for the applicant submits that applicant has falsely been implicated in the matter. Offence is triable by JMFC. Disposal of the matter

will take long time. It is further submitted that applicant has been implicated on the basis of memorandum of Smt. Santosh Bai, recorded under Section

27 of the Evidence Act and nothing has been recovered from possession of the applicant.

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 District Sheopur (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 Public Prosecutor opposed the application 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.

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:-

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.

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 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.