Gujarat High Court
Balkrushna Pravinbhai Gadhia vs State Of Gujarat on 5 October, 2023
Bench: Hasmukh D. Suthar
NEUTRAL CITATION
R/CR.MA/17713/2023 ORDER DATED: 05/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 17713
of 2023
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BALKRUSHNA PRAVINBHAI GADHIA
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 05/10/2023
ORAL ORDER
RULE. Learned APP waives service of notice of Rule on
behalf of the respondent - State of Gujarat.
[1.0] Heard learned advocate Mr.P.Y. Jasani for the applicant,
Mr. Mehta, learned APP for the respondent - State and learned
advocate Mr.Pravin Gondaliya for the complainant.
[2.0] By way of present application under Section 438 of the
Code of Criminal Procedure, 1973, the applicants accused have
prayed to release him on anticipatory bail in the event of his
arrest in connection with the FIR being C.R. No. 11208045230946
of 2023 registered with Malviyanagar Road Police Station,
Rajkot for the offences punishable under Sections 406 and 420
of the Indian Penal Code, 1860.
[3.0] Learned advocate for the applicant at the outset submitted
that the alleged offences are punishable with imprisonment upto
NEUTRAL CITATION
R/CR.MA/17713/2023 ORDER DATED: 05/10/2023
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7 years and notice under Section 41-A of the Code of Criminal
Procedure, 1973 is not issued by the Investigating Officer till
date. He has further apprehended that his anticipatory bail
application has been rejected by the learned Sessions Judge and
there is a possibility of his arrest
[4.0] Though time and again, the Hon'ble Apex Court as well as
this Court has observed that when an offence is punishable with
imprisonment upto 7 years, then it is mandatory on the part of
the police authority to scrupulously follow the directions issued
by the Hon'ble 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.
[5.0] In the instant case, as the applicant apprehends his arrest,
in that event, their right and liberty is jeopardized. It is needless
to say that in the case of Arnesh Kumar (Supra), 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:
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R/CR.MA/17713/2023 ORDER DATED: 05/10/2023
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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
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."
NEUTRAL CITATION
R/CR.MA/17713/2023 ORDER DATED: 05/10/2023
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[6.0] In view of the above, without influenced by any observation
made by the learned Sessions Judge, the police authority is
directed to follow the directions given by the Hon'ble Apex Court
in the above cited 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 authorizing the detention of
the applicant.
[7.0] With the above observations and direction, present
application is disposed of accordingly. Rule is hereby discharged.
Direct service is permitted.
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
