Rishikesh vs State Of M.P. & Anr

Rajeev Kumar Shrivastava, J

This first criminal appeal under Section 14-A (2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act [in short “SC/ST

Actâ€] has been filed against the order dated 29/3/2021 passed by Special Judge (SC/ST Act), Sheopur in Bail Application No.211/2021 by which the

anticipatory bail application of the appellant was rejected.

Appellant is apprehending his arrest in connection with Crime No.72/2021 registered at Police Station Vijaypur, District Sheopur for offences under

Sections 323, 294 and 34 of IPC and Sections 3(1)( DA), 3(2)(VA) and 3(1) (DHA) of Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities Act).

Learned counsel for the appellant â€" Rishikesh submits that appellant has not committed any offence. He has been falsely implicated. Appellant is a

young boy aged around 23 years and if he is sent to jail then it would spoil his future career. It is further submitted that co-accused Vanwarilal Bairagi

has already been granted benefit of decision rendered by the Hon'ble Apex Court in the case of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273

and case of the present appellant is also on the same footings. Hence, prayed to grant benefit of anticipatory bail to the appellant or directions be

issued in the light of the decision rendered in Arnesh Kumar (supra).

Learned Public Prosecutor for the respondent/State opposed the prayer and has submitted that several criminal cases are registered against the

appellant. Hence, prayed to reject the criminal appeal.

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

However, considering 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 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 plai n 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, present criminal appeal is disposed of in the light of law laid down by Hon'ble Apex Court in the case of Arnesh Kumar (Supra).

Prosecution is hereby directed to comply with the direction issued by Hon'ble Apex Court in Arnesh Kumar (supra) in its letter & spirit.

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