Devendra Sahu And Others vs State Of Madhya Pradesh

Rajeev Kumar Shrivastava, J

I.A. No.5472/2021, an application for urgent hearing is taken up, considered and allowed for the reasons mentioned therein.

The applicant has filed this second bail application u/S.438 of Cr.P.C for grant of anticipatory bail. Earlier bail was dismissed as withdrawn by this

court vide order dated 05/02/2021 passed in M.Cr.C.No.6594/2021.

Applicants are apprehending their arrest for the alleged offences registered at Crime No.19/2021 at Police Station Jhansi Road, District Gwalior for

the offence punishable under Sections 452, 323, 294, 336, 506, 34 of I.P.C.

Learned counsel for the applicants -Devendra Sahu and Sonu Sahu submits that applicants have not committed any offence. They have been falsely

implicated in this case on account of payment of some amount which was due for payment. There is no evidence against the present applicants. Only

omnibus allegations are made against them. It is further submitted that applicants are reputed citizens of the locality and if they are sent to jail then

their social reputation would get diminished. It is further submitted that the co- accused persons- Rakesh Gurjar and Yogendra Gurjar have granted

benefit in the light of the decision rendered by the Hon'ble Apex Court in the case of Arnesh Kumar Vs. State of Bihar. Applicants are ready to abide

by any condition which may be imposed by this Court. Hence, on the basis of parity, prayed to grant benefit of anticipatory bail to the applicants or

directions be issued in the light of the decision rendered by the Hon'ble Apex Court in the case of Arnesh Kumar Vs. State of Bihar:[(2014) 8 SCC

273].

Learned Panel Lawyer for the respondent/State opposed the prayer and has submitted that the offence is registered under Sections 452, 323, 294, 336,

506, 34 of I.P.C. Hence, prayed for rejection of this anticipatory bail application of the applicants.

Heard learned counsel for the parties and considered the arguments advanced by them and perused the record.

The Hon'ble Supreme Court in the case of Arnesh Kumar (supra) has 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 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 CRA4936/2020

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, present appeal is disposed of in the light of law laid down by Hon'ble Apex Court in the case of Arnesh Kumar (supra).

Prosecution is hereby directed to comply with the direction issued by the Hon'ble Apex Court in Arnesh Kumar (supra) in its letter & spirit.

Certified copy as per rules.