Golu Kirar And Another vs State Of M.P

Vishal Mishra, J

The applicants have filed this first application u/S.438 Cr.P.C. for grant of anticipatory bail as they have apprehension of their arrest in connection

with Crime No.212/2021 registered at Police Station District Gwalior (M.P.) for the offence punishable under Section 34 (2) of the

Excise Act.

It is alleged by the counsel for the applicants that there is no recovery from the present applicants. The applicants have been implicated on the basis of

memo of 27 of the other co-accused. The applicants are ready to abide by all the terms and conditions that may be imposed by this court while

considering the application for grant of anticipatory bail. There is no possibility of their absconding or tampering with the prosecution case. Counsel for

the applicants prays that the application may be allowed in terms of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273 and looking to the present

scenario of Covid-19, learned counsel for the applicants prays for grant of anticipatory bail to the applicants.

Per contra, learned Govt. Advocate for the State has opposed the anticipatory bail application stating that the applicants have absconded from the

spot, therefore, there could not be shown any recovery against the present applicants. However, he fairly submits that there is no criminal past against

the present applicants.

There is a specific bar for consideration of application for grant of anticipatory bail. But looking to the fact that there is no recovery from the

applicants from the spot and also that he has been roped in this case only on the basis of memo of Section 27 coupled with the fact that the Hon'ble

Supreme by order dated 23.03.2020 passed in the case of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU W.P. (C)

No.1/2020 has directed all the States to constitute a High Level Committee to consider the release of prisoners in order to decongest the prisons. The

Supreme Court has observed as under :-

“The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID

â€" 19).

Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus

within the prisons is controlled. We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of

the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of

Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For

instance, the State/Union Territory could consider the release of prisoners who have been convicted or are under trial for offences for which

prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the

maximum.

It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid,

depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is

charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.†and in the light of the Division Bench

has recently passed the judgment in the case of In Reference (Suo Moto) Vs. Union of India and Others vide dated 23.04.2021 in W.P.No.8820/2021,

this Court deems it appropriate to dispose of the application in the light of the Arnesh Kumar's case.

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 applicants

should first be summoned to cooperate in the investigation. If the applicants cooperates in the investigation then the occasion of their 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 the above and the Covid-19 pandemic scenario as well as 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 applicants fail to cooperate in the

investigation.

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

occasion of their arrest should not arise.

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

The applicants will inform the concerned S.H.O. of concerned Police Station about their residential address in the said area and it would be the duty of

the Govt. Advocate to send copy of this order to SHO of concerned police station as well as the concerned Superintendent of Police who shall inform

the concerned SHO regarding the same.

The applicants shall install Arogya Setu App. in their mobile immediately and would intimate their place of residence to the SHO of concerned Police

Station; where they reside. The applicants further submit the undertaking to the effect that they 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 (COVID-19) pandemic.

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