Devendra Dubey And Another vs State Of M.P

S.A.Dharmadhikari, J

This is the first application under section 438 of the Code of Criminal Procedure.

Applicants apprehend arrest in connection with Crime No.49/2021 registered at Police Station- Kotwali, Vidisha, District Vidisha (M.P.) for the

offences punishable under Sections 332, 353, 186, 506, 34 of IPC.

Allegations against the applicants, in short, are that on 01.02.2021 when government officials were demarcating the road, at that time present

applicants abused the officers' team filthily and also deterred them from discharging their official duty. On the basis of the aforesaid, crime has been

registered.

Learned counsel for the applicants submit that they have been falsely implicated in the case. It is further submitted that while demarcating the road the

authorities tried to dismental the fencing and boundary belonging to the applicants. Therefore, they objected to it and requested them to first get the

boundary demarcated and thereafter may continue with the demarcation. No overt act has been assigned or no injury has been caused to the official

team. Earlier also a complaint was lodged to the Collector but no action was initiated. This time also same thing was repeated, therefore, applicants

took objection. The applicants are ready to cooperate in the investigation. They are permanent residents of District Vidisha. There is no likelihood of

applicants' absconsion or tampering with the prosecution evidence if they are released on anticipatory bail. Applicants are ready to abide by the terms

and conditions as may be imposed. With the aforesaid submissions prayer for grant of anticipatory bail is made.

On the other hand, learned Panel Lawyer appearing for the respondent/State has opposed the anticipatory bail application and prayed for its rejection.

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 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 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 applicants fail to cooperate in the investigation.

(2) That, the applicants should first be summoned to cooperate in the investigation. If the applicants cooperate in the investigation, then the occasion of

his arrest should not arise.

The applicants shall also furnish a written undertaking before the SHO concerned that they 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.

Learned Panel Lawyer is directed to send a copy of this order to the Station House Officer of the concerned Police Station for information and

necessary action.

Certified copy as per rules.