Bhushan Dubey vs The State Of Madhya Pradesh
2021 Latest Caselaw 2995 MP

                                                                     1                           MCRC-25786-2021
                                            The High Court Of Madhya Pradesh
                                                      MCRC-25786-2021
                                                    (BHUSHAN DUBEY Vs THE STATE OF MADHYA PRADESH)

                                    5
                                    Jabalpur, Dated : 06-07-2021
                                          Heard through Video Conferencing.

                                          Shri Vijay Shukla, learned counsel for the applicant.
                                          Shri Yogendra Das Yadav, learned G.A. for the respondent/State.

This is first bail application under Section 438 of Cr.P.C. has been filed by the applicant for grant of anticipatory bail.

The applicant is apprehending his arrest in connection with Crime No.170/2021, registered at Police Station-Ashta, Distt.-Sehore, (M.P.) for offence punishable under Section 339(ga) of M.P. Nagar Palika Adhiniyam, 1961.

As per prosecution case, on dated 18.03.02021, Ankita Bajpayee, Nayab Tehsildar Tehsil-Ashta has filed a written complaint against the applicant that the applicant is constructing illegal colonies by dividing his plot bearing bearing khasra No. 849/8 rakwa 0.886 hectare without

colonizer license and development certificate. The applicants has failed to submit requisite documents for colonization, hence, the police has registered the FIR against them for the aforesaid offence.

Learned counsel for the applicant submits that the applicant is being falsely implicated in the case whereas he has not committed any offence. He submits that the land-in-question was purchased by the applicant through registered sale-deed wherein no construction is raised. The applicant got diverted the land on 11.02.2014. Since, no construction has been made in the alleged land, therefore, there is no requirement of colonizer license and other documents. The applicant has not sold any piece of land to anyone. The applicant has duly replied the notice, issued by the S.D.O. Ashta. Besides the above, he argued that due to COVID-19 Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.07.08 17:37:30 IST 2 MCRC-25786-2021 pandemic, there is every possibility of being infected. The principle of Arnesh Kumar's case are also applicable to the applicants.

On the other hand, learned G.A. for the respondent/State opposes the said application submitting that allegations leveled against the applicant are specific and therefore, he may not be released on bail.

Heard both the parties and perused the case diary. On perusal of case diary, prima facie, the allegations against the present applicant are that he is involved in illegal colonization on the land-in-question without obtaining statutory permission under the law made in this regard.

Considering the facts and circumstances of the case, I am not inclined to allow this bail application.

However, looking to the fact that the offence involved in the case are not punishable with more than 7 years of imprisonment and Section 41(1) of Cr.P.C. provides that the offences for which punishment prescribed is imprisonment for a term upto seven years, the accused may be kept in custody only if the condition enumerated in Section 41(1)(b)

(ii) of Cr.P.C. exist. In Arnesh Kumar's case [(2014) 8 SCC 273] , the Hon'ble Apex Court has held as under:-

"..........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......".

Therefore, in view of the observations laid down in the judgment referred above, I deem fit to direct as under :

(i) That, the police may resort to the extreme step of arrest only when the same is necessary and the applicants fail to cooperate in the investigation.

(ii) That, the applicant should first be summoned to cooperate in Signature Not Verified SAN the investigation. If the applicant cooperate in the investigation then Digitally signed by PALLAVI SINHA Date: 2021.07.08 17:37:30 IST 3 MCRC-25786-2021 the occasion of his arrest should not arise.

(iii) That, if the applicant-accused is arrested and he want to file application for regular bail before the trial Court, then he will be produced before the trial Court without any delay. Trial Court is also directed to consider his bail application as expeditiously as possible, preferably, on the same day.

This petition is disposed off with the aforesaid directions. C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

Pallavi

Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.07.08 17:37:30 IST