Bombay High Court
Pallavi Kamlesh Jawalikar vs The State Of Maharashtra Through Ps ... on 7 August, 2024
(1) 12.aba.573.2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (ABA) NO.573 OF 2024
Pallavi Kamlesh Jawalikar
Vs.
State of Maharashtra, Through Police Station, Sadar Nagpur
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. A. K. Madane, Advocate for applicant.
Mr. S. A. Ashirgade, APP for respondent/State.
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 07/08/2024
1. Apprehending the arrest at the hands of
police in connection with Crime No.459/2024
registered under Section 420 and 406 read with
Section 34 of the Indian Penal Code, the applicant
approached this Court for grant of pre-arrest bail.
2. The applicant is apprehending arrest at the
hands of police as crime is registered on the basis of
report lodged by Shubham Jagdish Nebhanani on an
allegation that present applicant and the other
co-accused promised him to provide the gold at
minimum rate and obtained the money from him, but
he has not received any gold and he was duped by
obtaining the amount of Rs.18 Lakhs.
3. Learned Counsel for the applicant
submitted that as far as the applicant is concerned,
no specific role is attributed to her, her custodial
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interrogation is not required. In view of that, she be
protected by granting ad-interim protection. He
further submitted that the son of the present
applicant has sustained the clavicle fracture and there
is nobody to look after him. In view of that also the
interim protection be granted to the applicant.
4. Learned APP strongly opposed the said
application on the ground that this is a fit case
wherein the custodial interrogation is required as
there is an allegation that present applicant and her
husband promised the informant that he can get the
gold on lesser amount, but the amount was obtained
by them and the gold was not provided to the
informant. Thus, it is case made out against the
present applicant.
5. After hearing the learned Counsel for the
applicant and learned APP for the State, perused the
investigation papers from which it reveals that the
offence alleged against the present applicant is under
Sections 420 and 406 of the Indian Penal Code for
which punishment provided is up to seven years. In
view of Section 41, the Investigating Officer has to
comply by issuing the notice. In view of the
observation of the Hon'ble Apex Court in the case of
Satender Kumar Antil Vs. Central Bureau of
Investigation and another reported 2022
LiveLaw(SC) 577. The Hon'ble Apex Court in the
above said judgment gave a guidelines before arrest
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of the accused wherein the punishment is provided
up to seven years. It is observed that Section 41
under Chapter V of the Code deals with the arrest of
persons. Even for a cognizable offence, an arrest is
not mandatory as can be seen from the mandate of
this provision. If the officer is satisfied that a person
has committed a cognizable offence, punishable with
imprisonment for a term which may be less than
seven years, or which may extend to the said period,
with or without fine, an arrest could only follow when
he is satisfied that there is a reason to believe or
suspect, that the said person has committed an
offence, and there is a necessity for an arrest. Such
necessity is drawn to prevent the committing of any
further offence, for a proper investigation, and to
prevent him/her from either disappearing or
tampering with the evidence. He/she can also be
arrested to prevent such person from making any
inducement, threat, or promise to any person
according to the facts, so as to dissuade him from
disclosing said facts either to the court or to the
police officer.
6. It further observed by the Hon'ble Apex
Court that the provision mandates the police officer
to record his reasons in writing while making the
arrest. Thus, a police officer is duty-bound to record
the reasons for arrest in writing. The consequence of
non-compliance with Section 41 shall certainly inure
to the benefit of the person suspected of the offence.
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7. Here in the present case, it appears there
is no compliance under Section 41 of the Code of
Criminal Procedure.
8. As far as the allegation against the present
applicant is concerned, which shows that the amount
was obtained on the promise of providing the gold
and said gold was not provided, the specific role is
attributed to the present applicant. As far as the
interim protection is concerned, no case is made out
for grant of ad-interim protection, but the
Investigating Officer shall comply by issuing the
notice under Section 41 of the Code of Criminal
Procedure before taking any action regarding the
arrest of the present applicant.
9. The Investigating Officer shall record his
reasons in view of the observation and guidelines
issued by the Hon'ble Apex Court in the case of
Satender Kumar Antil Vs. Central Bureau of
Investigation and another referred supra.
10. Stand over after one week.
(URMILA JOSHI-PHALKE, J.)
Sarkate
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 09/08/2024 15:05:32
