Mahesh Rai vs State Of Madhya Pradesh

Sushrut Arvind Dharmadhikari, J

Heard.

Case diary is perused.

This is the first application filed under section 438 of the Code of Criminal Procedure on behalf of applicant Mahesh Rai.

Applicant apprehends arrest in connection with Crime No.302/2022, registered at Police Station Rahatgarh, District Sagar (M.P.) for the offence punishable under Section 407 of Indian Penal Code.

The prosecution story, in short, is that the complaint was lodged to the effect that on 10.05.2022 the complainant had hired the vehicle belonging to the applicant and co-accused Ajay Rai for transporting 600 cane of Soyabeen Oil from Indore to Maihar. Sonu Rai was the driver of the vehicle. On 13.05.2022 Ajay informed that due to failure of the vehicle, the goods could not be delivered. Till 16.05.2022, the truck did not reach the destination. On the basis of the aforesaid, the present crime has been registered.

Learned counsel for the applicant submits that the applicant is the co-owner of the truck and has falsely been implicated in the case. He belongs to a reputed family of the locality and if the applicant is arrested, then his reputation would be tarnished. There is no criminal past of the applicant. The applicant is ready to cooperate in the investigation. Without giving any notice under Section 41-A of the Cr.P.C. the police is trying to arrest the applicant. Applicant is permanent resident of District Sagar (M.P.). There is no likelihood of his absconsion or tampering with the prosecution evidence if he is released on anticipatory bail. He is ready to abide by the terms and conditions as may be imposed by this Court. In such circumstances, he may be enlarged on anticipatory bail on the basis of the judgment rendered in the case of Arnesh Kumar Vs. State of Bihar ((2014) 8 SCC 273).

Per-Contra, learned counsel for the State opposed the application by contending that goods of Rs.14,130,90/- are missing and the applicant being the owner of the truck and having entrusted the property, is liable. Investigation is pending and custodial interrogation may be required, therefore, he prays for rejection of anticipatory bail.

However, in the case of Arnesh Kumar Vs. State of Bihar ((2014) 8 SCC 273), it has been directed by the Apex Court 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 does not cooperate in the investigation. The applicant should first b e summoned to cooperate in the investigation. If the applicant 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 t he police officer o nly o n 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 o f the offence t o 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 i t will achieve ? I t i s o nly 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 i s necessary for one o r the more purposes envisaged by sub-clauses (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 o n 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, t he 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:-

(1) That, the police may resort to the extreme step of arrest only when the same is necessary and the applicant fails t o cooperate i n the investigation.

(2) 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.

The applicant shall furnish a written undertaking before the SHO concerned 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.

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

Certified copy as per rules.