Nand Kishore Rajoriya vs State Of M.P

Sheel Nagu, J

This is first application u/S.438 Cr.P.C. for grant of anticipatory bail by petitioner.

Petitioner apprehends arrest in connection with offence punishable u/S.379, 414 IPC, u/S.4 & 21 Mines and Minerals (Development and Regulation)

Act, 1957 & u/S.18(1) Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006 registered as Crime

No.142/2021 by Police Station Bhander, District Datia (M.P.).

Learned counsel for the State opposed the application 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.

Petitioner apprehends arrest in respect of offence of theft and other relevant mining offences with the allegation that tractor and trolley belonging to

petitioner was used for illegal mining and transportation of sand by the co-accused.

Considering the aforesaid and the allegations made in the case diary as read over by the State counsel, no case for grant of anticipatory bail is made

out.

However, looking to the fact that since the offence in question attracts punishment upto 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 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

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 without interfering in the

impugned order dated 06.07.2021 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 petitioner fails to cooperate in the investigation.

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

his arrest should not arise.

Subject to above modification in the order of the trial court dated 06.07.2021, the present anticipatory bail application stands disposed of.

A copy of this order be sent to the trial Court for necessary compliance.