Gulshan @ Tinku Sukhani vs State Of Madhya Pradesh

Appeal u/s. 14-A (2) of the SC/ST (Prevention of Atrocity) Act, 1985 has been filed challenging the order dated 02.03. 2019 passed by the Special Judge (Atrocity), Datia.

Appellant is seeking anticipatory bail in connection with Crime No. 116/2018 registered at Police Station Kotwali, District Datia (M.P.) for offences punishable u/ss. 323, 294, 506 and 34 of the IPC and u/s. 3 (1) (r) and (s) of SC and ST (Prevention of Atrocity) Act, 1989.

The contention of the appellant is that a false case has been registered against him with ulterior motive. From the perusal of the FIR it is clear that no case u/s. 3 (1) (r) and (s) of SC and ST (Prevention of Atrocity) Act, 1989.is made out against the appellant. FIR has been registered on the very next date. Appellant has further contended that under similar circumstances relief has been granted by this Hon'ble court and he has relied upon the judgement in the case of Ambreesh Singh vs. The State of Madhya Pradhesh being Cr.A. No. 4788/2019 and has prayed for grant of anticipatory bail to him.

On the other hand, learned counsel for the respondent vehemently opposed the application and has taken stand that there is specific bar u/s.18 of SC and ST Act, for granting anticipatory bail. He has further stated that specific allegation regarding using abusive words is available in the FIR and accordingly he has prayed for dismissal of the bail application.

I have gone through the order and perused the record.

Hon'ble Apex Court considered the aspect and has laid down certain principles to the effect that offence involving punishment up to seven years, the police may resort to the extreme step of arrest only when the same is necessary and appellant does not cooperate in the investigation. The appellant should first be summoned to cooperate in the investigation. If the appellant cooperates in the investigation then the occasion of his arrest does 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:-

"œ7.1. 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 orwhich 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 courtwhenever 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 aconclusion 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:-

(i) That, the police may resort to the extreme step of arrest only when the same is necessary and the appellants fail to cooperate in the investigation.

(ii) That, the appellant should first be summoned to cooperate in the investigation. If that appellant cooperate in the investigation then the occasion of their arrest should not arise.

Considering the aforesaid, present appeal for anticipatory bail is disposed of.

Copy of this order be sent to the trial court for necessary compliance.

C.C. as per rules.