Madhya Pradesh High Court

Jitendra Kumar Dubey vs The State Of Madhya Pradesh on 15 June, 2021

Author: Vishal Mishra

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           THE HIGH COURT OF MADHYA PRADESH
                       MCRC.29136 of 2021.
            ( Jitendra Kumar Dubey Vs. State of M.P. )

GWALIOR; dated 15.06.2021.

      Shri Siddharth Sharma, learned counsel, for the applicant.

      Shri Prabharkar Kushwah, learned PL for the respondent /State.

In the wake of unprecedented and uncertain situation due to

outbreak of the Novel Corona virus (COVID-19) and considering the

advisories issued by the Government of India, this application has been

heard and decided through video conferencing to maintain social

distancing. The parties are being represented by the respective counsels

through video conferencing, following the norms of social distancing/

physical distancing in letter and spirit.

This is the second bail application u/S.438 Cr.P.C filed by the

applicant for grant of anticipatory bail.

The applicant is apprehending his arrest by Police Station

Maharajpura district Gwalior in connection with Crime No.77 of 2021

registered in relation to the offence punishable Sections 379 and 414 of

IPC and Section 4 and 21 of the Mines and Mineral ( Development and

Regulation) Act 1957.

It is submitted by counsel for the applicant that earlier application

of the applicant was rejected on merits on 1.3.2021 in M.Cr.C.No.11756

of 2021. It is argued that this application has been filed only on the

ground that the offences which are registered against the applicant are

punishable with punishment of less than seven years therefore, looking

to the pandemic scenario as well as the judgment rendered by the

THE HIGH COURT OF MADHYA PRADESH MCRC.29136 of 2021.

( Jitendra Kumar Dubey Vs. State of M.P. )

Hon'ble Supreme Court by order dated 23.03.2020 in the case of IN

RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO

MOTU W.P. (C) No.1/2020 wherein, 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 and specific guidelines

issued by Hon'ble Supreme in the case of Arnesh Kumar Vs. State of

Bihar, (2014) 8 SCC 273, he has repeated this application. The

applicant is a first offender having no criminal history. He is ready to

cooperate with the investigation and prayed that application may be

allowed in terms of Arnesh Kumar (Supra).

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

stating that the applicant is not cooperating in the investigation and the

investigation is still pending in the matter. He has relied upon the

judgment of Hon'ble Apex Court in G.R.Ananda Babu Vs. State of Tamil

Nadu (SLP (Cri) No.213 of 2021 on 28.1.2021) wherein, it is held that

subsequent application for anticipatory bail is not maintainable. But he

fairly submitted that the applicant is a first offender having no criminal

history as per the case diary.

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

Considering the overall facts and circumstances of the case, the

THE HIGH COURT OF MADHYA PRADESH MCRC.29136 of 2021.

( Jitendra Kumar Dubey Vs. State of M.P. )

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

this Court Principal Seat at Jabalpur as stated herein above 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), 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 applicant do not cooperate in the investigation. The

applicant should first be summoned to cooperate in the investigation. If

the applicant cooperates in the investigation then the occasion of his

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 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

THE HIGH COURT OF MADHYA PRADESH MCRC.29136 of 2021.

( Jitendra Kumar Dubey Vs. State of M.P. )

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

verification of the fact that the applicant is a first offender 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 applicant fail to cooperate in the investigation.

(ii) That, the applicant should first be summoned to cooperate in the investigation. If the applicant cooperates in the investigation then the occasion of his arrest should not arise.

(iii) The applicant 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.

(iv) If the applicant is found involved in any other offence except the present one, this order shall stand vacated without

THE HIGH COURT OF MADHYA PRADESH MCRC.29136 of 2021.

( Jitendra Kumar Dubey Vs. State of M.P. )

reference to the court;

(v) The applicant is directed to cooperate in the investigation and will keep himself present before the Investigating Officer concerned as and when called and in case of default in appearance, bail granted to him shall stand rejected without reference to the court;

With the aforesaid directions, the present anticipatory bail

application stands disposed of.

The applicant shall install Arogya Setu App in his mobile

immediately and would intimate his place of residence to the S.H.O of

concerned Police Station, where he resides. The applicant shall further

submit an undertaking to the effect that he will abide by the terms and

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

Central Govt. State Govt as well as Local Administration for

maintaining social distancing hygiene etc to avoid Novel Corona Virus

(Covid-19) Pandemic.