Allahabad High Court
Yogesh Chaudhary @ Pintu & Another vs State Of U.P. Through Its ... on 21 August, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:167555
Court No. - 71
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9348 of 2023
Applicant :- Yogesh Chaudhary @ Pintu & Another
Opposite Party :- State Of U.P. Through Its Principal Secretary
Counsel for Applicant :- Subodh Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
1. Heard learned counsel for the applicants, learned AGA for the State and perused the record.
2. The applicants apprehend their arrest in Crime No. 219 of 2023, under Sections 147, 308,427 IPC, P.S. Kanth, District Moradabad.
3. It is submitted that the applicants have falsely been implicated in the crime and they have not committed any offence in any manner. It is further submitted that the Sections are covered with the seven years but till date the police has not complied the procedure of Section 41 of Cr.P.C.
4. Counsel for the applicant has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, reported in (2014) 8 SCC 273. The applicants are ready to abide by all the terms and conditions that may be imposed by this Court while granting anticipatory bail. On these grounds, he prays for granting anticipatory bail to the applicants.
5. 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.
6. 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.
7. 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."
8. Considering the overall facts and circumstances of the case, this Court deems it appropriate to disposed of the bail application. In view of the principles laid down by the Supreme Court in the case of Arnesh Kumar (supra), the applicant should first be summoned to cooperate in the investigation. If the applicant cooperated in the investigation and the punishment is of seven years for the aforesaid offence, then the occasion of his/her/their arrest should not arise.
9. 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 allow the application with the following directions:-
(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 cooperate in the investigation then the occasion of their arrest should not arise.
10. With the aforesaid directions, the present anticipatory bail application stands disposed of.
Order Date :- 21.8.2023
RavindraKSingh
