Shaitan Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 8360 MP

                                   1                            MCRC-60047-2021
        The High Court Of Madhya Pradesh
                MCRC No. 60047 of 2021
            (SHAITAN SINGH AND OTHERS Vs THE STATE OF MADHYA PRADESH)


Gwalior, Dated : 07-12-2021
      Shri Pawan Singh Raghuwanshi, learned counsel, for the applicant.

      Shri Vijay Sundaram, learned panel lawyer for the respondent/State.

T his is the first anticipatory bail application under Section 438 of Cr.P.C by the applicant. They are apprehending their arrest in connection with Crime No.128/2021, registered at Police Station Kotwali Gyaraspur,

District Vidisha in relation to the offence punishable under Sections 294, 323, 506, 342, 34 and 365 of Indian Penal Code.

It is alleged that the applicant has been falsely implicated in the case. He has not committed any offence in any manner. Initially the offence was registered under Sections 294, 323, 506, 342 and 34 of IPC, but later on Sec. 365 of IPC has been added which is non compoundable. It is pointed out that a criminal case registered against the brother of the complainant namely Lalu Bheel who has eloped the sister of present applicants and the offences were registered at Crime No. 124/2021 for punishable offences under Section 363

of IPC just to take the revenge, a cross case registered against the present applicants. He has placed reliance upon the judgment passed by the Supreme Court in the case of Siddarth Vs. State of U.P., reported in 2021 SCC online SC 615 and has argued that as there is every apprehension that the applicant will be arrested at the time of presenting the charge sheet before the trial Court, therefore, they have filed the present anticipatory bail. It is argued that how custody is defined and is being considered and explained in the case of Siddarth (Supra) by the Hon'ble Supreme Court. He has further placed reliance upon the judgment passed in the case of Satendra Kumar Antil Vs. Central Bureau of Investigation and Anr. reported in 2021 SC 603 and has argued that Hon'ble Supreme Court while considering the case of Siddarth (Supra) has framed certain categories and the case of the present applicants is fully covered under sub clause (d) of Category A, therefore, 2 MCRC-60047-2021 physical presence is not required in the matter. They are ready to cooperate in the investigation. On these grounds, they prayed for grant of anticipatory bail to the applicant.

P e r contra, counsel appearing for the State has opposed the bail application stating that learned trial Court has already disposed of anticipatory

bail application of the present applicants in the light of Arnesh Kumar Vs. State of Bihar, reported in (2014) 8 SCC 273 and there is no order of rejection of the bail order by the learned trial Court. It was only directed that under Section 41(A) of Cr.P.C. notice be issued to the applicants and in case, the applicants do not cooperate in the investigation, then coercive action be taken against them. It is pointed out that there is nothing on record to demonstrate the fact regarding coercive steps have been taken against the present applicants. He prayed for dismissal of the present bail application.

Hon'ble Supreme Court in the case of Arnesh Kumar (Supra) has held as under:-

"7.1. From a plain reading of the provision u/S.41 Cr.P.C., 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 from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his 3 MCRC-60047-2021 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. 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 subclauses (a) to (e) of clause (1) of Section 41 Cr.P.C.

9 . Another provision i.e. Section 41-A Cr.P.C. aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalized.

This provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) Cr.P.C., 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 4 MCRC-60047-2021 under Section 41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by he Magistrate as aforesaid."

It is seen from the record that the application under Section 438 of Cr.P.C. was disposed of by the learned trial Court directing the Police Authorities to follow the procedure as directed by the Hon'ble Supreme Court in the case of Arnesh Kumar (Supra) and in case of non-cooperation of the applicants, the coercive action would be taken against them. No such action could be pointed out by the learned counsel for the applicants, in such circumstances, present bail application is hereby rejected.

(VISHAL MISHRA) JUDGE

(LJ*) LOKENDRA JAIN 2021.12.08 10:34:59 +05'30'