Golu Kirar vs The State Of Madhya Pradesh
2021 Latest Caselaw 2128 MP

HIGH COURT OF MADHYA PRADESH MCRC.No.26854/2021 (Golu Kirar and Another Vs. The State of M.P.)

Gwalior, Dated : 07.06.2021

Shri Yash Sharma, learned counsel for the applicants.

Shri Pramod Pachauri, learned Govt. Advocate for the State.

Heard the learned counsel for the parties through Video

Conferencing.

The applicants have filed this first application u/S.438 Cr.P.C.

for grant of anticipatory bail as they have apprehension of their arrest

in connection with Crime No.212/2021 registered at Police Station

iqjkuh Nkkouh, District Gwalior (M.P.) for the offence punishable under

Section 34 (2) of the Excise Act.

It is alleged by the counsel for the applicants that there is no

recovery from the present applicants. The applicants have been

implicated on the basis of memo of 27 of the other co-accused. The

applicants are ready to abide by all the terms and conditions that may

be imposed by this court while considering the application for grant of

anticipatory bail. There is no possibility of their absconding or

tampering with the prosecution case. Counsel for the applicants prays

that the application may be allowed in terms of Arnesh Kumar Vs.

State of Bihar, (2014) 8 SCC 273 and looking to the present scenario

of Covid-19, learned counsel for the applicants prays for grant of

anticipatory bail to the applicants.

Per contra, learned Govt. Advocate for the State has opposed the

HIGH COURT OF MADHYA PRADESH MCRC.No.26854/2021 (Golu Kirar and Another Vs. The State of M.P.)

anticipatory bail application stating that the applicants have absconded

from the spot, therefore, there could not be shown any recovery against

the present applicants. However, he fairly submits that there is no

criminal past against the present applicants.

There is a specific bar for consideration of application for grant

of anticipatory bail. But looking to the fact that there is no recovery

from the applicants from the spot and also that he has been roped in

this case only on the basis of memo of Section 27 coupled with the

fact that the Hon'ble Supreme 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 has directed all the States to

constitute a High Level Committee to consider the release of prisoners

in order to decongest the prisons. The Supreme Court has observed as

under :-

"The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID - 19). Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled. We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as,

(ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory

HIGH COURT OF MADHYA PRADESH MCRC.No.26854/2021 (Golu Kirar and Another Vs. The State of M.P.)

could consider the release of prisoners who have been convicted or are under trial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate."

and in the light of the Division Bench has recently passed the

judgment in the case of In Reference (Suo Moto) Vs. Union of India

and Others vide dated 23.04.2021 in W.P.No.8820/2021, this Court

deems it appropriate to dispose of the application in the light of the

Arnesh Kumar's case.

However, 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), it is directed that in offences involving punishment

upto seven years imprisonment the police may resort to the extreme

step of arrest only when the same is necessary and the applicant do not

cooperate in the investigation. The applicants should first be

summoned to cooperate in the investigation. If the applicants

cooperates in the investigation then the occasion of their arrest should

HIGH COURT OF MADHYA PRADESH MCRC.No.26854/2021 (Golu Kirar and Another Vs. The State of M.P.)

not arise.

For ready reference and convenience the guidelines laid down by

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

enumerated 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

HIGH COURT OF MADHYA PRADESH MCRC.No.26854/2021 (Golu Kirar and Another Vs. The State of M.P.)

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

HIGH COURT OF MADHYA PRADESH MCRC.No.26854/2021 (Golu Kirar and Another Vs. The State of M.P.)

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 the above and the Covid-19 pandemic scenario as

well as the principles laid down by the Apex Court in the case of

Arnesh Kumar (Supra), this Court is inclined to allow the application

and direct thus :

(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 applicants should first be summoned to cooperate in the investigation. If the applicants cooperate in the investigation then the occasion of their arrest should not arise.

With the aforesaid directions, the present anticipatory bail

application stands disposed of.

The applicants will inform the concerned S.H.O. of concerned

Police Station about their residential address in the said area and it

would be the duty of the Govt. Advocate to send copy of this order to

SHO of concerned police station as well as the concerned

Superintendent of Police who shall inform the concerned SHO

regarding the same.

HIGH COURT OF MADHYA PRADESH MCRC.No.26854/2021 (Golu Kirar and Another Vs. The State of M.P.)

The applicants shall install Arogya Setu App. in their mobile

immediately and would intimate their place of residence to the SHO of

concerned Police Station; where they reside. The applicants further

submit the undertaking to the effect that they will abide by the terms

and conditions of different circulars, orders as well as guidelines issued

by Central Government, State Government as well as Local

Administration for maintaining social distancing, hygiene etc to avoid

Novel Corona Virus (COVID-19) pandemic.

E-copy/Certified copy as per rules/directions.

                                                (Vishal Mishra)
AK/-                                                Judge
        ANAND KUMAR
        2021.06.08
        10:49:13
        +05'30'