Shivram And Ors. vs State Of Madhya Pradesh And Anr.

Present appeal has been filed under Section 14-(A)(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the order dated 16/9/2019 passed by Special Sessions Judge, Guna, whereby the application of the appellants under Section 438 of Cr.P.C. seeking bail has been rejected.

Appellants Shivram, Ravi Raghuvanshi and Kallu Raghuvanshi are apprehending their arrest for the alleged offences registered at Crime No.334/2017 at Police Station Aron, District Guna, punishable under Sections 353, 332, 323, 294, 341, 506 and 147 of the IPC and Section 3 (1) (r) (s) and 3 (2) (va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the SC/ST Act).

Learned counsel for the appellants submits that they have not committed any offence. The appellants have been falsely implicated. The complainant of the case does not belong to the SC/ST category, therefore, no case is made out under the SC/ST Act. It is further submitted that other co-accused has already been granted bail by this Court.

Further, the appellants are the permanent residents of Village Pipariya Jagir Chauki Panwari Haat, Police Station Aron, District Guna and there is no possibility of their absconding or tampering with the prosecution evidence. Hence, prayed to grant benefit of anticipatory bail to the appellants 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 Public Prosecutor for the respondent/State as well as learned counsel for the complainant opposed the prayer and submitted that the alleged incident was committed against the government servant while he was officiating his duty. Hence, prayed to reject this 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 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 appellants fail to cooperate in the investigation.

(ii) that, the appellants should first be summoned to cooperate in the investigation. If tha appellants cooperate in the investigation then the occasion of their arrest should not arise.

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