Mahesh Kumar Sharma And Ors. vs State Of Madhya Pradesh

Learned counsel for the State informs that due intimation to the victim has been sent through office of the Addl. Advocate General but despite service

of notice, no one appears.

Case Diary is perused.

Learned counsel for the rival parties are heard.

The present appeal u/S 14A of SC/ST (Prevention of Atrocities)Act assails the order dated 20.02.2020 passed by Special Judge(Atrocities) Distt.

Bhind whereby application preferred by appellants herein u/S 438 Cr.P.C. has been rejected.

Appellants apprehend arrest in connection with offences punishable u/Ss. 323, 294, 506, 34 of IPC and u/S. 3(1)(r) Sec 3(1) (s) and 3(2) (va) of

SC/ST (Prevention of Atrocities) Act, 1989 registered as Crime No.01/2020 at Police Station AJK, District Bhind.

Learned Public Prosecutor for the State opposed the appeal 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.

Reading of case diary reveals that allegations of uttering abusive words, causing minor injuries and criminal intimidation are alleged against the

appellants. The complainant is a member of SC/ST community and therefore, prima facie it appears that offence punishable u/S.3(1)(r) and 3(1)(s) is

made out. Hence, the statutory bar contained u/S 18 of the SC/ST (Prevention of Atrocities)Act comes in the way of petitioner.

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 27,3 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 subclauses (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 the decision of this Court in Criminal Appeal No.8795/2018 (Mangaram and anr. Vs. State of M.P.) decided on 05.12.2018, similar view has been

taken.

In view of above and considering the principles laid down by the Apex Court in the case of Arnesh Kumar (Supra), this court without interfering in the

impugned order dated 20.02.2020 passed by the Court below 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 appellants should first be summoned to cooperate in the investigation. If appellants cooperate in the investigation then the occasion of their

arrest should not arise.

With the aforesaid directions, the present criminal appeal stands disposed of.

C.c. as per rules.