Layakram vs State Of M.P

S.A.Dharmadhikari, J

In pursuance of the directions issued by the Apex Court and guidelines issued by the High Court of Madhya Pradesh in the wake of COVID-19

outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government.

Case Diary is not available.

Learned counsel for the rival parties are heard.

The applicant has filed this First application u/S 438, Cr.P.C. for grant of bail.

Applicant apprehends arrest in connection with Crime No. 182/2020 registered at Police Station Tharet, District Datia for the offence punishable

under section 420, 511, 120-B of IPC.

Allegations against the applicant, in short, is that the applicant, who is working as data entry operator in the Government department along with co-

accused have demanded illegal money from the agriculturists and when the agriculturists refused to give money, their crops were rejected. It was also

found that the applicant has tampered the computer data. It was also found that after weighing was stopped, inspite of this fact, the applicant along

with co-accused continued to purchase the crops with an intention to get illegal gain. On the basis of aforesaid, crime has been registered.

Learned counsel for the applicant submits that applicant aged 25 years is a reputed citizen of the locality and has been falsely implicated in the matter.

The applicant has been working on the post of data entry operator and the instant criminal case has been registered against him without proper

investigation and without collecting evidence. Neither any loss has been caused to the complainant nor any property has been damaged nor the

applicant has committed cheating with anybody. Learned counsel for the applicant submits that the applicant has no criminal antecedents. Attention

has also been invited to the guidelines issued to all the States and Union Territories by the Apex Court for de-congesting the prisons in suo motu W.P.

(C) No. 1/2020 (IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS) to consider release of prisoners who have been convicted or are

under trial for offences for which prescribed punishment is up to 7 years or less by constituting a High Powered Committee. He further submits that

the conditions as stipulated in section 41 of the Cr.P.C. are not satisfied in the instant case, and, as such, the applicant should not be taken into

custody. For this he has placed reliance on the decision of the Apex Court in the case of Arnesh Kumar Vs. State of Bihar (2014 CrLR (SC) 721.)

Applicant is permanent resident of the Dist. Datia (M.P.) and there are no chances of his absconding or tampering with the prosecution evidence. He

shall abide by the terms and conditions as may be imposed by this Court. Under these circumstances, applicant prays for grant of interim anticipatory

bail.

Learned State counsel opposed the application on the ground that investigation against the applicant is pending and custodial interrogation is required

and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of anticipatory bail

is made out.

From perusal of the order of the lower Court, prima facie offences as alleged above are made out and therefore, no case for interim anticipatory bail

to the applicant is made out.

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 Vs. State of Bihar (2014) 8 SCC 273 ,It is directed 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 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 inthe 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

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 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 applicant fails to cooperate in the investigation.

(ii) That, the applicant should first be summoned to cooperate in the investigation. If the applicant cooperates in the investigation, then the occasion of

his arrest should not arise.

(iii) The applicant shall also furnish a written undertaking that he 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.

(iv) He shall install Arogya Setu App.(If not already installed) in the mobile phone;

Learned State counsel is directed to send an e-copy of this order to the Station House Officer of the concerned Police Station for information and

necessary action.

E- copy of this order be sent to the trial Court concerned for compliance, if possible by the office of this Court.

List this matter in the 1st week of February, 2021, as prayed for.

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