Rajendra Kumar Shrivastava vs State Of MP

Vishal Mishra, J

The applicants have filed this first application under section 438 of the Cr.P.C. for grant of bail.

The present first application under Section 438 of Cr.P.C for anticipatory bail as he has an apprehension of his arrest in connection with Crime No.

87/2021 registered at Police Station Dharnavada, Distt. Guna for the offences punishable under Section 509 of IPC and Sec. 67 and 67-A of

Information Technology Act.

It is submitted that he has falsely been implicated in the present applicant and he has not committed any offence in any manner. As per prosecution

story the allegation is of posting porn videos to the complainant's mobile against the present applicant. On the basis of which, the aforesaid offence has

been registered against the present applicant. He is ready to cooperate with the investigation and prayed that application may be allowed in terms of

Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273.

Per contra, learned counsel for the State has opposed the bail application stating that investigation is pending in the matter and he is not cooperating in

the investigation, but he fairly submits that he is having no criminal case as per case diary.

Heard the learned counsel for the parties and perused the case diary.

Considering the overall facts and circumstances of the case and also the directives issued by the Hon'ble Supreme Court in the case of IN RE :

CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU W.P. (C) No.1/2020 as well as the order passed by the Division Bench of the

Principal seat on 17.05.2021 IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU W.P. (C) No.9320/2021 regarding

consideration of the bail applications as well as under trial prisoners are concerned and considering the present scenario of COVID-19 and also

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 (Supra), 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 applicant does not cooperate in the investigation. The applicant

should first be summoned to cooperate in the investigation. If the applicant cooperate 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.

9 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 applicants should first be summoned to cooperate in the investigation. If the applicant cooperate in the investigation then the occasion of

his arrest should not arise.

(iii) The applicant will inform the SHO of concerned police station about his residential address in the said area and it would be the duty of the Public

Prosecutor to send E-copy of this order to SHO of concerned police station for information.

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

E- copy of this order be provided to the applicants and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear that

E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.

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