Ramvilas And Others vs State Of M.P

Vishal Mishra, J

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by

the Government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being

represented by the respective counsels through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

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

The applicants are apprehending their arrest by Police Station Tighra district Gwalior, in connection with Crime No.86 of 2021 registered in relation to

the offence punishable u/S 452, 323, 294, 506 and 34 of IPC.

It is submitted by counsel for the applicants that the applicants have been falsely implicated in the case and he has not committed any offence. The

applicants are first offender having no criminal history. There is a cross case pending against the complainant party registered at Crime No.87 of

2021. They are 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 prayer stating that the applicants are not cooperating in the investigation and the

investigation is still pending in the matter.

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

Considering the overall facts and circumstances of the case 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 up to seven years imprisonment the police may resort to the extreme step of arrest only when the same is necessary and the

applicants do not cooperate in the investigation. The applicants should first be summoned to cooperate in the investigation. If the applicants cooperate

in the investigation then the occasion of their 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) and subject to verification of the

fact that the applicants are first offenders having no criminal history, 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 applicants fail to cooperate in the investigation.

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

their arrest should not arise.

(iii) The applicants 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.

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