Madhya Pradesh High Court

Udayveer Singh Tomar vs The State Of Madhya Pradesh on 7 June, 2021

Author: Vishal Mishra

                                                                          1
           THE HIGH COURT OF MADHYA PRADESH
                          CRA.3110.2021.
        (Udaivir Singh Tomar and Another Vs. State of M.P. )

GWALIOR; dated 07.06.2021.

       Shri Sushil Goswami, counsel for the appellants.

       Shri Pramod Pachauri, PP for the respondent /State.

Heard through VC.

The present appeal has been filed under Section 14 (A)(2) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for brevity 'the Atrocities Act') against the order dated 27.4.2021 passed by

Special Judge (Atrocities), Bhind whereby the application of the appellants

under Section 438 of Cr.P.C. seeking anticipatory bail has been rejected in

connection with Crime No.26 of 2021 registered at Police Station Endori

district Bhind for the offence under Sections 323, 294 and 34 of IPC and 3 (1)

(d) and 3(1) (dha) and 3 (2) (va) of the Atrocities Act.

It is submitted by counsel for the appellants that the appellants have

been falsely implicated in the case and they have not committed any offence

in any manner. It is argued that although the appeal under Section 18 of SC

ST Act for grant of anticipatory bail is barred but looking to the present

scenario of Covid 19 Pandemic where the judgment rendered by the Hon'ble

Supreme Court by order dated 23.03.2020 passed in the case of IN RE :

CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU W.P. (C)

No.1/2020 while considering the situation arising out of the Covid 19

Pandemic scenario, it has directed all the States to constitute a High Level

Committee to consider the release of prisoners in order to decongest the

prisons if they are not required any further in custody and by Division Bench

of this Court Principal Seat at Jabalpur in W.P.No.9320 of 2021 on 17.5.2021.

It is further submitted that coordinate Bench of this court has considered the

THE HIGH COURT OF MADHYA PRADESH CRA.3110.2021.

(Udaivir Singh Tomar and Another Vs. State of M.P. )

similar aspect in the case of Dinesh Upadhyay Vs. State of M.P

(Cr.A.No.2667 of 2021) and has allowed the application for anticipatory bail

for similar offences. He submits that the appellants are first offenders having

no criminal history as per the information given to him. They are ready to

cooperate with the investigation and prayed that application may be allowed

in terms of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273.

Per contra, learned counsel for the State has opposed the prayer stating

that the appeal under Section 438 for grant of anticipatory bail is barred under

Section 18 of SC ST Act. But he fairly submits that the appellants are first

offenders having no criminal history.

Heard the learned counsel for the parties and perused the case diary.

Considering the overall facts and circumstances of the case and also

looking to the fact that since the offence in question attracts punishment less

than 7 years and therefore, in view of the principles laid down by the

Supreme Court in the case of Arnesh Kumar (Supra) and considering the

directions issued by Hon'ble Apex Court and Division Bench of this Court

Principal Seat at Jabalpur in W.P. (C) No.1/2020 and W.P.No.9320 of 2021

on 17.5.2021 respectively, it is directed that in offences involving

punishment up to seven years imprisonment the police may resort to the

extreme step of arrest only when the same is necessary and the appellants do

not cooperate in the investigation. The appellants should first be summoned

to cooperate in the investigation. If the appellants cooperate in the

investigation then the occasion of their arrest should not arise.

For ready reference and convenience the guidelines laid down by the

Supreme Court in the case of Arnesh Kumar (Supra) are enumerated

THE HIGH COURT OF MADHYA PRADESH CRA.3110.2021.

(Udaivir Singh Tomar and Another Vs. State of M.P. )

below:-

"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 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 under Section 41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by he Magistrate as aforesaid."

In view of above and considering the principles laid down by the Apex

THE HIGH COURT OF MADHYA PRADESH CRA.3110.2021.

(Udaivir Singh Tomar and Another Vs. State of M.P. )

Court in the case of Arnesh Kumar (Supra) and subject to verification of the

fact that the appellants are first offenders having no criminal history, this

Court is inclined to direct thus:

"(i) That, the police may resort to the extreme step of arrest

only when the same is necessary and the appellants fail to

cooperate in the investigation.

(ii) That, the appellants should first be summoned to cooperate in

the investigation. If the appellants cooperate in the investigation

then the occasion of their arrest should not arise.

(iii) The appellants will inform the SHO of concerned police

station about his residential address in the said area and it would

be the duty of the Public Prosecutor to send E-copy of this order to

SHO of concerned police station for information.