Gujarat High Court
Nareshbhai Arjanbhai Devani vs State Of Gujarat on 25 September, 2023
Bench: Hasmukh D. Suthar
NEUTRAL CITATION
R/CR.MA/17162/2023 ORDER DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17162 of 2023
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NARESHBHAI ARJANBHAI DEVANI
Versus
STATE OF GUJARAT
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Appearance:
MR BOMI H SETHNA(5864) 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 : 25/09/2023
ORAL ORDER
1. Heard Mr. Bomi Sethna, learned Counsel for the applicant and
Mr.Hardik Mehta, learned APP for the respondent State.
2. Rule. Ld. APP waives service of Rule for the respondent State.
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 their arrest in
connection with the FIR being C.R. No.11210060231978 of
2023 registered with Varachha Police Station, Surat, for the
offences punishable under Sections 406 and 114 of Indian Penal
Code, 1860.
4. Learned Counsel for the applicant at the outset submitted that
the alleged offence is punishable upto 7 years and notice under
Section 41-A of the Code of Criminal Procedure, 1973 is not issued
by the investigating officer till date.
5. Though time and again, the Hon'ble Apex Court as well as this
Court has observed that when an offence is punishable upto 7 years,
then it is mandatory on the part of the police authority to
NEUTRAL CITATION
R/CR.MA/17162/2023 ORDER DATED: 25/09/2023
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scrupulously follow the directions issued by the 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.
6. In the instant case, as the applicant apprehends his arrest, in
that event, his right and liberty is jeopardized. It is needless to say
that in case of Arnesh Kumar v. State of Bihar reported in
(2014)8 SCC 273, 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:
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
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R/CR.MA/17162/2023 ORDER DATED: 25/09/2023
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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."
7. In view of the above, the police authority is directed to follow
the directions given by the Hon'ble Apex Court in the above cited
cases 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
authorize the detention of the applicant.
8. With the above observations and direction, present application
is disposed of accordingly. Liberty to revive in case of any difficulty.
Direct Service is permitted. Rule is made absolute to the
aforesaid extent.
(HASMUKH D. SUTHAR,J)
SUCHIT
