Shivam Chauhan & Ors. vs State Of M.P. & Ors

Rajeev Kumar Shrivastava, J

I.A. No.12969/2021, an application for urgent hearing is taken up, considered and allowed for the reasons mentioned therein.

This is first bail application filed under section 438 of Cr.P.C. filed by the applicants for grant of anticipatory bail.

Applicants are apprehending their arrest for the alleged offences registered at Crime No.202/2021 at Police Station Karera, District Shivpuri (MP),

punishable under Sections 452, 323, 294, 506, 34 of IPC.

Learned counsel for the applicants submits that the applicants have been falsely implicated in the matter and they have no connection with the

offence. As per prosecution story, mere allegation of house trespass and causing marpeet was made against the present applicants. It is further

submitted that no physical injuries were found in the MLC. The investigation and trial will take its own time. Hence, prayed to grant benefit of

anticipatory bail to the applicants or directions be issued in the light of the decision rendered by the Hon'ble Apex Court in the case of Arnesh Kumar

Vs. State of Bihar:[(2014) 8 SCC 273].

Learned counsel for the respondent/State opposed the prayer and has submitted that the offence is registered under Sections 452, 323, 294, 506, 34 of

IPC. But the learned counsel for the State fairly submitted that there is no criminal antecedents against the present applicants. Hence, prayed for

rejection of this application.

Heard learned counsel for the parties at length through VC and considered the arguments advanced by them and perused the record.

Looking to the fact that no physical injuries were found in the MLC and there is no criminal antecedents against them, which fact has been affirmed

by the State counsel also, hence, 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 petitioners should first be summoned to cooperate in the investigation. If the petitioners

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 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 anticipatory bail application 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 the Hon'ble Apex Court in Arnesh Kumar (supra) in its letter & spirit.

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

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