Munbbar Ali vs State Of Madhya Pradesh

Learned counsel for the rival parties are heard.

This is the first application under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail.

Applicant apprehends his arrest in connection with Crime No.608/2019 registered at Police Station- Kampoo, District- Gwalior for the offence punishable under Sections 354, 354-D, 354-A and 294 of the IPC.

Allegations against the applicant, in short, are that when the complainant went to take her younger sister from the school, at that time, the applicant came there and started using filthy language and caught her hand with bad intention. On the basis of aforesaid, crime has been registered against the applicant.

Learned counsel for the applicant submits that applicant is a youth of 23 years who has no criminal past alleged against him and he has been falsely implicated in the matter. The applicant is not concerned with the case directly or indirectly. It is also submitted by the counsel for applicant that the complainant executed an affidavit stating therein that due to hot-talk, she lodged an FIR against the applicant. In the statement recorded under Section 164 of Cr.P.C., there is no allegation of catching hand of the complainant by the applicant. The applicant and complainant belong to the same community and know each other well. The applicant is a student and he is a permanent resident of District- Gwalior. The applicant is ready to abide by all the terms and conditions as may be imposed by this Court. With the aforesaid submissions, prayer for grant of anticipatory bail is made out.

On the other hand, learned Public Prosecutor opposed the application and prayed for its rejection by contending that on the basis of the allegations and material available on record, no case for grant of bail is made out. It is also submitted that the investigation in the matter is pending and custodial interrogation may be required.

From perusal of the order of the trial Court, prima facie the offences as alleged above are made out against the applicant and therefore, at this stage, the applicant cannot be given the benefit of anticipatory bail.

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.

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