Samantbhai Bhalubai Jadav vs State Of Gujarat

                                                                                          NEUTRAL CITATION




      R/CR.MA/17336/2023                                  ORDER DATED: 29/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 17336
                           of 2023
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                           SAMANTBHAI BHALUBAI JADAV
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR VINOD M GAMARA(5910) for the Applicant(s) No. 1,2,3,4,5,6,7
V D MARU(7547) for the Applicant(s) No. 1,2,3,4,5,6,7
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                   Date : 29/09/2023

                                    ORAL ORDER

1. Heard Mr. Vinod M. Gamara, learned Counsel for the applicants and Mr.Hardik Mehta, learned APP for the respondent State.

2. Rule. Ld. APP waives service of Rule for the respondent State.

3. By way of present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants accused have prayed to release them on anticipatory bail in the event of their arrest in connection with the FIR being C.R. No.11211055230354 of 2023 registered with Wadhwan Police Station, Dist. Surendranagar, for the offences punishable under Sections 147, 148, 149, 323, 324, 504, 506(2) of the Indian Penal Code, 1860 and Section 135 of the G.P.Act.

4. Learned Counsel for the applicant at the outset submitted that the alleged offence is punishable upto 7 years and notice under Section 41-A of the Code of Criminal Procedure, 1973 is not issued by the investigating officer till date.

NEUTRAL CITATION R/CR.MA/17336/2023 ORDER DATED: 29/09/2023 undefined

5. Though time and again, the Hon'ble Apex Court as well as this Court has observed that when an offence is punishable upto 7 years, then it is mandatory on the part of the police authority to scrupulously follow the directions issued by the Apex Court in the cases of Arnesh Kumar v. State of Bihar reported in (2014)8 SCC 273; Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022)10 SCC 51 and Md. Asfak Alam vs. State of Jharkhand and Another reported in 2023 SCC OnLine SC 892 and prior to making mechanical arrest of a person, police authority shall have to follow the aforesaid provisions and dictum as well.

6. In the instant case, as the applicant apprehends his arrest, in that event, his right and liberty is jeopardized. It is needless to say that in case of Arnesh Kumar v. State of Bihar reported in (2014)8 SCC 273, sufficient care has been taken by the Hon'ble Apex Court. The Apex Hon'ble Court has observed thus:-

11.Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: 11.1 All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

11.2 All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)

(ii);

11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4 The Magistrate while authorising detention of the accused shall peruse the report furnished by the Page 2 of 3 Downloaded on : Fri Sep 29 20:45:35 IST 2023 NEUTRAL CITATION R/CR.MA/17336/2023 ORDER DATED: 29/09/2023 undefined police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; 11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. 11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."

7. In view of the above, the police authority is directed to follow the directions given by the Hon'ble Apex Court in the above cited cases decisions well as the mandate of Section 41A of the Code of Criminal Procedure, 1973 before making a mechanical arrest of the applicant. Further, the learned Magistrate concerned is also directed to verify the reason and then pass appropriate order prior to authorize the detention of the applicant.

8. With the above observations and direction, present application is disposed of accordingly. Liberty to revive in case of any difficulty.

Direct Service is permitted. Rule is made absolute to the aforesaid extent.

(HASMUKH D. SUTHAR,J) SUCHIT Page 3 of 3 Downloaded on : Fri Sep 29 20:45:35 IST 2023