Gaurav Umeshbhai Sharma vs State Of Gujarat
2023 Latest Caselaw 7419 Guj

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     R/CR.MA/17458/2023                              ORDER DATED: 07/10/2023

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 17458
                           of 2023
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                          GAURAV UMESHBHAI SHARMA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR MAULIN G PANDYA(3999) for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                               Date : 07/10/2023

                                ORAL ORDER

1. RULE. Learned APP waives service of notice of Rule on behalf of the respondent - State of Gujarat.

2. Heard learned advocates for the respective parties.

3. By way of present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No. 11191008230160 of 2023 registered with Chandkheda Police Station, Ahmedabad for the offences punishable under Sections 406, 420, 294(b), 506(2) and 114 of the Indian Penal Code, 1860 and under Section 33, 42(a), 42(d) of Prevention of Gujarat Money Lenders Act.

4. At the out set, learned advocate for the applicant has submitted that notice issued under Section 41A of the Cr.P.C is

NEUTRAL CITATION

R/CR.MA/17458/2023 ORDER DATED: 07/10/2023

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not served and similarly situated co-accused has appeared before the police authority and straightway co-accused has been arrested. Hence, applicant apprehended his arrest.

5. At the outset, without entering into the merits, it is worth to mentioned that the alleged offences are punishable with imprisonment upto 7 years against the present accused, as per mandatory provision of Section 41A of Cr.P.C, 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 shall not make mechanical arrest of the accused persons.

6. It is needless to say that at the event of his arrest, without following the proper procedure, if the police authority arrest the accused persons, then prior to make mechanical arrest, Magistrate concerned is also directed to verify the reason recorded by the Investigating authority for the arrest and then pass appropriate order prior to authorizing the detention of the applicant. 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

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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 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

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concerned shall be liable for departmental action by the appropriate High Court."

7. In view of the above, without influenced by any observation made by the learned Sessions Judge, the police authority is directed to follow aforesaid mandate prior to making mechanical arrest of the applicant.

8. With the above observations and direction, present application is disposed of accordingly. Rule is hereby discharged. Direct service is permitted.

It would be open for the applicant that in case of difficulty, he may approach this Court.

(HASMUKH D. SUTHAR,J) KUMAR ALOK