Rahul vs State Of M.P.

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.

Heard on IA No. 17183/2020, an application under Section 301(2) of the Cr.P.C.

For the reasons stated in the application, the same is allowed and Shri K.G. Singh, learned counsel on behalf of the complainant and his associate is permitted to assist the prosecution.

Heard, learned counsel for the parties. Case diary perused.

This is the first application under section 438 of the Code of Criminal Procedure.

Applicant apprehends arrest in connection with Crime No.241/2020 registered at Police Station- Hajira, District Gwalior (M.P.) for the offence punishable under Section 195A, 506 and 34 of IPC.

Allegations against the applicant and other co-accused persons, in short, are that on 27.07.2020 they threatened the complainant to enter into comprise in the case instituted at Crime No.209/2020 for the offences punishable under Sections 376(2)(n), 294, 506B and 34 of IPC. On the basis of the aforesaid, crime has been registered.

Learned counsel for the applicant submits that he has been falsely implicated in the case. He has no connection with the Crime No.209/2020 in which he has falsely been implicated. Just with the intention to implicate the applicant, this false FIR has been lodged. Earlier co-accused Karu @ Shailendra has also been extended benefit of anticipatory bail vide order dated 22/09/2020 passed in M.Cr.C. No. 35090/2020. 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. The applicant is ready to cooperate in the investigation. He is permanent resident of District Morena. There is no likelihood of applicant's 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. With the aforesaid submissions prayer for grant of anticipatory bail is made.

On the other hand, learned Additional Advocate General has opposed the anticipatory bail application by contending that though the present applicant may not have any role in the offence registered at Crime No.209/2020 but there is every possibility of threatening the complainant to enter into compromise which would certainly attract the provisions of Section 195A of IPC. Investigation is pending. Custodial interrogation of the applicant may be required. Therefore, at this stage, the applicant is not entitled for benefit of anticipatory bail and on such grounds prays for its rejection.

At this stage, learned counsel for the applicant volunteered to deposit an amount of Rs.5,000/- (Rs.Five Thousand Only) in the account of the High Court Bar Association, Gwalior.

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 up to 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 be summoned to cooperate in the investigation. If the applicant cooperates in the investigation, then the occasion of her 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 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 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 to cooperate in 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.

It is made clear that benefit of bail shall be extended to the applicant only on depositing an amount of Rs.5,000/-(Rs.Five Thousand Only) in the account of the High Court Bar Association, Gwalior for the purpose of assistance and rehabilitation of those members of the Bar, who are facing financial distress due to Lockdown and restrictive functioning of the courts owing to ongoing Covid-19 pandemic. This Court has no manner of doubt that the office bearers and the Senior members of the Bar shall ensure that the donation reaches the rightful and deserving claimants. The applicant shall submit an attested photocopy of such receipt before the concerned court for placing the same on record. The applicant shall install Arogya Setu App (if not already installed) in his mobile phone.

The applicant shall also 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.

Learned Additional Advocate General 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.

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