Gujarat High Court
Hiteshpuri Bharatpuri Goswami vs State Of Gujarat on 10 August, 2023
Bench: Nirzar S. Desai
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R/CR.MA/12543/2023 ORDER DATED: 10/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12543 of 2023
With
CRIMINAL MISC.APPLICATION (FOR INTERIM RELIEF) NO. 1 of
2023
In R/CRIMINAL MISC.APPLICATION NO. 12543 of 2023
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HITESHPURI BHARATPURI GOSWAMI
Versus
STATE OF GUJARAT
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Appearance:
KUMAR H TRIVEDI(9364) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 10/08/2023
ORAL ORDER
1. By way of this application under Section 438 of
the Code of Criminal Procedure, 1973, the applicant
is seeking anticipatory bail in connection with the
offence registered as C.R.No.11216009230355 of 2023
with Mansa Police Station for the offences punishable
under Sections 379 of the Indian Penal Code, Sections
4(1) & 4(1)(A) of Mines and Minerals (Regulation and
Development) Act, 1957 and Rule 3 & 21 of Gujarat
Mineral (Prevention of Illegal Mining, Transportation
and Storage) Rules.
2. Heard learned advocate Mr. Kumar H. Trivedi for
the applicant and learned APP Mr. Manan Mehta for the
State.
3. The present applicant is shown as accused No.2
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in the aforesaid FIR and as per the contents of the
FIR, the present applicant is the Power of Attorney
Holder of one Shardaben Jilusinh Rathod whose husband
late Jilubhai Badarsinh Rathod was having leasehold
rights and upon his death, the same were acquired by
Shardaben and the present applicant is the Power of
Attorney Holder of said Shardaben.
4. As per the FIR, it is the present applicant who
was conducting mining activities outside the lease
area and thereby has done illegal mining of 1271.22
cubic meter of sand, which amounts to
Rs.5,25,02,892/- and the total amount involved
because of the illegal mining was Rs.7,42,74,078/-
for which a show cause notice was issued on
10.05.2023 to the present applicant.
5. According to learned advocate Mr.Trivedi, the
present applicant, though is having Power of Attorney
to excavate the sand from the leasehold right area
and is also whistle-blower and as he drew the
attention of the authority to the illegal mining
carried out by some other persons, he has been
falsely implicated. Mr. Trivedi submitted that he is
not involved in the offence in question and it was
further submitted by learned advocate Mr. Trivedi
that the provisions of Section 41A of the Criminal
Procedure Code, 1973, (hereinafter referred to as the
'Code' for short), which are mandatory in nature and
as the Hon'ble Supreme Court has time and again held
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that the compliance of provisions of Section 41A of
the Code should be strict and in its true sense, the
same are not complied with by the authority. He has
relied on the judgments of the Hon'ble Supreme Court
in the case of Arnesh Kumar v. State of Bihar ,
reported in (2014) 8 SCC 273 and in the case of
Satender Kumar Antil v. Central Bureau of
Investigation & Anr., reported in (2022) 10 SCC 51
and submitted that the ratio of the aforesaid two
judgments are not strictly followed and complied by
the authority and the notices dated 23.07.2023 and
28.07.2023 issued under Section 41A of the Code,
which were duly received by the present applicant,
are nothing but an eyewash and therefore the
judgments of the Arnesh Kumar (Supra) and
Satenderkumar Antil (supra) are required to be
followed in its true spirit. Learned advocate Mr.
Trivedi specifically relied upon paragraph 22 to 30
of the judgment of the Hon'ble Supreme Court in the
case of Satender Kumar Antil (supra) and drew the
attention of this Court to the following observations
made by the Hon'ble Supreme Court:
"22.This 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. Similarly, the police officer shall
record reasons when he/she chooses not to
arrest. There is no requirement of the
aforesaid procedure when the offense alleged is
more than seven years, among other reasons.
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23.The consequence of non-compliance
with Section 41 shall certainly inure to the
benefit of the person suspected of the offense.
Resultantly, while considering the application
for enlargement on bail, courts will have to
satisfy themselves on the due compliance of
this provision. Any non-compliance would
entitle the accused to a grant of bail.
24.Section 41A deals with the procedure for
appearance before the police officer who is
required to issue a notice to the person
against whom a reasonable complaint has been
made, or credible information has been received
or a reasonable suspicion exists that he has
committed a cognizable offence, and arrest is
not required under Section 41(1). Section
41B deals with the procedure of arrest along
with mandatory duty on the part of the officer.
25.On the scope and objective of Section
41 and 41A, it is obvious that they are facets
of Article 21 of the Constitution. We need not
elaborate any further, in light of the judgment
of this Court in Arnesh Kumar v. State of
Bihar, (2014) 8 SCC 273:
"7.1. From a plain reading of the aforesaid
provision, 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
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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. In fine, 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 CrPC.
8. An accused arrested without warrant by the
police has the constitutional right
under Article 22(2) of the Constitution of
India and Section 57 CrPC to be produced
before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours
excluding the time necessary for the journey:
8.1. During the course of investigation of a
case, an accused can be kept in detention
beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of
power under Section 167 CrPC. The power to
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authorise detention is a very solemn
function. It affects the liberty and freedom
of citizens and needs to be exercised with
great care and caution. Our experience tells
us that it is not exercised with the
seriousness it deserves. In many of the
cases, detention is authorised in a routine,
casual and cavalier manner.
8.2. Before a Magistrate authorises detention
under Section 167 CrPC, he has to be first
satisfied that the arrest made is legal and
in accordance with law and all the
constitutional rights of the person arrested
are satisfied. If the arrest effected by the
police officer does not satisfy the
requirements of Section 41 of the Code,
Magistrate is duty-bound not to authorise his
further detention and release the accused. In
other words, when an accused is produced
before the Magistrate, the police officer
effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its
conclusions for arrest and the Magistrate in
turn is to be satisfied that the condition
precedent for arrest under Section 41 CrPC
has been satisfied and it is only thereafter
that he will authorise the detention of an
accused.
8.3. The Magistrate before authorising
detention will record his own satisfaction,
may be in brief but the said satisfaction
must reflect from his order. It shall never
be based upon the ipse dixit of the police
officer, for example, in case the police
officer considers the arrest necessary to
prevent such person from committing any
further offence or for proper investigation
of the case or for preventing an accused from
tampering with evidence or making inducement,
etc. the police officer shall furnish to the
Magistrate the facts, the reasons and
materials on the basis of which the police
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officer had reached its conclusion. Those
shall be perused by the Magistrate while
authorising the detention and only after
recording his satisfaction in writing that
the Magistrate will authorise the detention
of the accused.
8.4. In fine, when a suspect is arrested and
produced before a Magistrate for authorising
detention, the Magistrate has to address the
question whether specific reasons have been
recorded for arrest and if so, prima facie
those reasons are relevant, and secondly, a
reasonable conclusion could at all be reached
by the police officer that one or the other
conditions stated above are attracted. To
this limited extent the Magistrate will make
judicial scrutiny.
9. ...The aforesaid provision makes it clear
that in all cases where the arrest of a
person is not required under Section
41(1) CrPC, 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 CrPC
has to be complied and shall be subject to
the same scrutiny by the Magistrate as
aforesaid.
10. We are of the opinion that if the
provisions of Section 41 CrPC which
authorises the police officer to arrest an
accused without an order from a Magistrate
and without a warrant are scrupulously
enforced, the wrong committed by the police
officers intentionally or unwittingly would
be reversed and the number of cases which
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come to the Court for grant of anticipatory
bail will substantially reduce. We would like
to emphasise that the practice of
mechanically reproducing in the case diary
all or most of the reasons contained
in Section 41 CrPC for effecting arrest be
discouraged and discontinued.
11. Our endeavour in this judgment is to
ensure that police officers do not arrest the
accused unnecessarily and Magistrate do not
authorise detention casually and
mechanically. In order to ensure what we have
observed above, we give the following
directions:
11.1. All the State Governments to instruct
its police officers not to automatically
arrest when a case under Section 498-A IPC is
registered but to satisfy themselves about
the necessity for arrest under the parameters
laid down above flowing from Section 41 CrPC;
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 filled 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 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
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of the district for the reasons to be
recorded in writing;
11.6. Notice of appearance in terms
of Section 41-A CrPC 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 the 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.
12. We hasten to add that the directions
aforesaid shall not only apply to the cases
under Section 498-A IPC or Section 4 of the
Dowry Prohibition Act, the case in hand, but
also such cases where offence is punishable
with imprisonment for a term which may be
less than seven years or which may extend to
seven years, whether with or without fine."
26.We only reiterate that the directions
aforesaid ought to be complied with in letter
and spirit by the investigating and prosecuting
agencies, while the view expressed by us on the
non-compliance of Section 41 and the
consequences that flow from it has to be kept
in mind by the Court, which is expected to be
reflected in the orders.
27.Despite the dictum of this Court in Arnesh
Kumar (supra), no concrete step has been taken
to comply with the mandate of Section 41A of
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the Code. This Court has clearly
interpreted Section 41(1)(b)(i) and (ii) inter
alia holding that notwithstanding the existence
of a reason to believe qua a police officer,
the satisfaction for the need to arrest shall
also be present. Thus, sub-clause (1)(b)(i)
of Section 41 has to be read along with sub-
clause (ii) and therefore both the elements of
'reason to believe' and 'satisfaction qua an
arrest' are mandated and accordingly are to be
recorded by the police officer.
28.It is also brought to our notice that there
are no specific guidelines with respect to the
mandatory compliance of Section 41A of the
Code. An endeavour was made by the Delhi High
Court while deciding Writ Petition (C) No. 7608
of 2017 vide order dated 07.02.2018, followed
by order dated 28.10.2021 in Contempt Case (C)
No. 480 of 2020 & CM Application No.25054 of
2020, wherein not only the need for guidelines
but also the effect of non-compliance towards
taking action against the officers concerned
was discussed. We also take note of the fact
that a standing order has been passed by the
Delhi Police viz., Standing Order No. 109 of
2020, which provides for a set of guidelines in
the form of procedure for issuance of notices
or orders by the police officers. Considering
the aforesaid action taken, in due compliance
with the order passed by the Delhi High Court
in Writ Petition (C) No.7608 of 2017 dated
07.02.2018, this Court has also passed an order
in Writ Petition (Crl.) 420 of 2021 dated
10.05.2021 directing the State of Bihar to look
into the said aspect of an appropriate
modification to give effect to the mandate
of Section 41A. A recent judgment has also been
rendered on the same lines by the High Court of
Jharkhand in Cr.M.P. No. 1291 of 2021 dated
16.06.2022.
29.Thus, we deem it appropriate to direct all
the State Governments and the Union Territories
to facilitate standing orders while taking note
of the standing order issued by the Delhi
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Police i.e., Standing Order No. 109 of 2020, to
comply with the mandate of Section 41A. We do
feel that this would certainly take care of not
only the unwarranted arrests, but also the
clogging of bail applications before various
Courts as they may not even be required for the
offences up to seven years.
30.We also expect the courts to come down
heavily on the officers effecting arrest
without due compliance of Section
41 and Section 41A. We express our hope that
the Investigating Agencies would keep in mind
the law laid down in Arnesh Kumar (Supra), the
discretion to be exercised on the touchstone of
presumption of innocence, and the safeguards
provided under Section 41, since an arrest is
not mandatory. If discretion is exercised to
effect such an arrest, there shall be
procedural compliance. Our view is also
reflected by the interpretation of the specific
provision under Section 60A of the Code which
warrants the officer concerned to make the
arrest strictly in accordance with the Code.
Section 87 and 88 of the Code "87. Issue of
warrant in lieu of, or in addition to,
summons.--A Court may, in any case in which
it is empowered by this Code to issue a
summons for the appearance of any person,
issue, after recording its reasons in
writing, a warrant for his arrest--
(a) if, either before the issue of such
summons, or after the issue of the same but
before the time fixed for his appearance,
the Court sees reason to believe that he has
absconded or will not obey the summons; or
(b) if at such time he fails to appear and
the summons is proved to have been duly
served in time to admit of his appearing in
accordance therewith and no reasonable
excuse is offered for such failure
88. Power to take bond for appearance.--When
any person for whose appearance or arrest
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the officer presiding in any Court is
empowered to issue a summons or warrant, is
present in such Court, such officer may
require such person to execute a bond, with
or without sureties, for his appearance in
such Court, or any other Court to which the
case may be transferred for trial."
6. Learned advocate Mr. Trivedi submitted that in
view of aforesaid clear position of law as the FIR is
registered under Sections 379 of the Indian Penal
Code, Sections 4(1) & 4(1)(A) of Mines and Minerals
(Regulation and Development) Act, 1957 and Rule 3 &
21 of Gujarat Mineral (Prevention of Illegal Mining,
Transportation and Storage) Rules, which provides for
a maximum punishment which is less than 7 years, the
present applicant is required to be enlarged on
anticipatory bail. Learned advocate Mr. Trivedi
further submitted that during the period from the
date on which the FIR is registered till today there
is nothing adverse reported against the present
applicant by the Investigating Officer. He has not
tried to tamper with any of the witnesses and that
the present applicant is ready and willing to
cooperate with the investigation and therefore the
present applicant be considered for anticipatory
bail. Mr. Trivedi also relied upon the judgment dated
31.07.2023 of the Hon'ble Supreme Court in the case
of Md. Asfak Alam v. The State of Jharkhand & Anr.
passed in Criminal Appeal No.2207 of 2023, wherein
also the Hon'ble Supreme Court emphasized on the
strict compliance of Section 41A of the Code.
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7. Lastly, learned advocate Mr. Trivedi submitted
that even in case if the authorities are of the view
that present applicant is required to be arrested as
provided under sub-section (3) of Section 41A of the
Code, in that case, the reasons in writing must come
from DSP and not from the IO. By making aforesaid
submissions, he prayed for enlarging the present
applicant on anticipatory bail.
8. Learned APP Mr. Manan Mehta has vehemently
opposed this application and submitted that the
offence in question involves an illegal mining which
would run into crores of rupees. The amount of
illegal mining quantified by the authority is of
Rs.5,25,02,892/-. He submitted that along with
compounding fees and other heads considered as per
the FIR, the amount comes to Rs.7,42,74,078/-, which
shows that the offence is grave in nature. Learned
APP Mr. Mehta further submits that the investigating
officer has complied with the provisions of Section
41A of the Code and not once but twice the present
applicant was called upon to give the statement. The
first notice was served upon the applicant on
23.07.2023 and second notice was served upon the
applicant on 28.07.2023.
8.1. Even Mr. Kumar H. Trivedi appearing for the
applicant also did not dispute the aforesaid aspect.
8.2. Learned APP Mr. Mehta submitted that despite the
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service of the aforesaid notice twice, till date i.e.
up to 10th August, 2023, the present applicant has not
turned up for giving his statement, which prima
facie, shows that he is not cooperating with the
investigation. Learned APP has further brought to the
notice of this Court from the police papers the
photographs whereby the illegal mining allegedly done
by the present applicant right from river. He further
submitted that the present applicant is, under the
pretext of having power of attorney of the person who
was having leasehold rights, actually carrying out
illegal mining from outside the area for which he was
permitted to excavate. Learned APP further submitted
that the FIR is not registered as if a mechanical
exercise is carried out. He submitted that the raid
was carried out on 01.05.2023 and all Panch Rojkams
were carried out in presence of the present
applicant. He further submitted that after due
deliberations, upon receipt of a report from the
Geologist, within a period of 45 days as prescribed
under the Mines and Minerals (Regulation and
Development) Act, 1957, the FIR is registered. Once
the FIR shows prima facie involvement of the present
applicant on the basis of the statements of the
witnesses and considering the material against the
present applicant, after careful consideration,
within the time limit prescribed under the Act, the
FIR is registered. Therefore, considering the huge
amount of illegal mining involved in this FIR i.e.
around Rs.7,42,74,078/-, the present applicant may
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not be considered for anticipatory bail.
9. At this stage, learned advocate Mr. Trivedi
submitted that both the notices under Section 41A of
the Code are illegal and the Coordinate Bench of this
Court has also directed the authorities not to take
any coercive action against the applicant in respect
of the provisions of MMRD Act and therefore this
Court may consider the aforesaid aspect while dealing
with the present application for anticipatory bail.
10. I have heard the learned advocates for the
parties and perused the record. It is brought to the
notice of this Court that provisions of Section 41A
of the Code are complied with by the IO. It was
submitted by learned APP, which has been taken note
of by the Court, that despite the service of notice
under Section 41A to the present applicant on
23.07.2023 and 28.07.2023, present applicant had not
remained present before the IO. I have also
considered the gravity of the offence as illegal
mining of sand worth more than five crores is alleged
to have been done by the present applicant. I have
also considered the photographs which are allegedly
indicating the area of illegal mining which shows
that illegal mining was carried out right from the
river. Further, the Investigating Officer Mr. S. S.
Desai, Police Inspector, Mansa Police Station is
present in the Court and upon his instruction,
learned APP Mr. Mehta, at this juncture, makes a
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statement that the reasons indicating the requirement
of arrest of the present applicant are mentioned in
the police diary, which, according to this Court is
sufficient as even under sub-section (3) of Section
41A provides that in case if the IO is of the view
that a person is required to be arrested, he is
required to record the reasons in writing. The report
of the I.O. dated 10.08.2023 is taken on record.
11. In view of above, considering the gravity of
offence and when the provisions of Section 41A of the
Code are complied with by the IO as well as
considering the past conduct of the applicant, as
despite the notice under Section 41A of the Code
issued to the applicant twice on 23.07.2023 and
28.07.2023, which, admittedly, are received by the
applicant as stated by Mr. Trivedi, shows that
applicant is not cooperating in the investigation.
Therefore, considering all facts and circumstances as
well as in view of above discussion, I do not see any
reason to grant anticipatory bail to the present
applicant. In view of that, application deserves to
be dismissed and accordingly dismissed.
12. In view of dismissal of main matter, civil
application for interim relief does not survive and
accordingly stands disposed of.
(NIRZAR S. DESAI,J)
LAVKUMAR J JANI
