Indradevi And Anr. vs State Of Madhya Pradesh

This is the first bail application under Section 438 of the Cr.P.C filed by the applicant, who apprehend their arrest in connection with Crime No.301/2019, registered at Kotwali, Police Station Lahar, District Bhind (M.P.), for the offences punishable under Section 498A IPC.

Applicants are mother-in-law and father-in-law of the prosecutrix who apprehend arrest in respect of aforesaid offences where the allegation is of causing dowry demand related cruelty without any injury having been inflicted on the prosecutrix. Arrest in matters of this nature may diminish the possibility of settlement in the near future.

Learned Public Prosecutor for the respondent/State opposed the prayer and submitted that there are specific allegations against the present applicant of beating the complainant and the demand of dowry being made by them and it is further submitted that bail application under Section 438 of Cr.P.C. is not maintainable and prayed for dismissal of application.

Heard learned counsel for the parties and perused the case diary.

However, considering the principles laid down by the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273, 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 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 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 applicants fail to cooperate in the investigation.

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

C.C. As per rules.