Bhagwanlal Kushwah vs The State Of Madhya Pradesh
2021 Latest Caselaw 1879 MP

        HIGH COURT OF MADHYA PRADESH,
              BENCH AT GWALIOR
               M.Cr.C. No. 19156/2021
      (  Bhagwanlal Kushwah Vs The State of M.P.)
                                  (1)

Heard through video conferencing.
Gwalior, dated : 07/05/2021
     Shri Balwant Singh, learned counsel for the applicant.

      Shri Rohit Mishra, learned Additional Advocate General for

the respondent-state

Heard, learned counsel for the parties.

Case diary perused.

This is the first application under section 438 of the Code of

Criminal Procedure.

Applicant apprehends arrest in connection with Crime

No.68/2021 registered at Police Station- Madhoganj District

Gwalior (M.P.) for the offences punishable under Sections 420/34 of

the IPC.

Allegations against the applicant, in short, are that he has

alienated the muafi aukaf land belonging to the government to

various persons. On the basis of the aforesaid, crime has been

registered.

Learned counsel for the applicants submits that he has been

falsely implicated in the case. FIR has been registered against him

without taking into consideration the documents i.e. sale deeds,

permission, entries and the judgment and decree passed by various

courts including High Court in Second Appeal. The offence under

Section 420 of IPC is punishable with imprisonment of seven years.

It is further submitted that the applicant is ready to cooperate in the

investigation. He is permanent residents of District Gwalior. There HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No. 19156/2021 ( Bhagwanlal Kushwah Vs The State of M.P.)

is no likelihood of applicant's absconsion or tampering with the

prosecution evidence if he is released on anticipatory bail. Applicant

is ready to abide by the terms and conditions as may be imposed. It

is further submitted that when the investigation is pending and the

prosecution has not come to the conclusion that the applicant has

actually committed cheating, therefore, in such circumstances,he

may be enlarged on anticipatory bail on the basis of the judgment

rendered in the case of Arnesh Kumar Vs. State of Bihar ((2014) 8

SCC 273).

On the other hand, learned Additional Advocate General has

opposed the anticipatory bail application and prayed for its rejection.

However, in the case of Arnesh Kumar Vs. State of Bihar

((2014) 8 SCC 273), it has been directed by the Apex Court 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 does 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 her 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 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No. 19156/2021 ( Bhagwanlal Kushwah Vs The State of M.P.)

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 sub-clauses (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 vitalised. 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, HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.Cr.C. No. 19156/2021 ( Bhagwanlal Kushwah Vs The State of M.P.)

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 the Magistrate as aforesaid."

In view of above and considering the principles laid down by

the Apex Court in the case of Arnesh Kumar (Supra) this Court is

inclined to direct thus:-

(1) That, the police may resort to the extreme step of arrest only when the same is necessary and the applicant fails to cooperate in the investigation. (2) 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.

The applicant shall furnish a written undertaking before the

SHO concerned that he will abide by the terms and conditions of

various circulars, as well as, orders issued by the Central

Government, State Government and local administration from time

to time such as maintaining social distancing, physical distancing,

hygiene etc. to avoid proliferation of Corona virus.

With the aforesaid directions, the present anticipatory bail

application stands disposed of.

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

(S.A.Dharmadhikari) Judge Prachi* PRACHI MISHRA 2021.05.07 22:28:59 +05'30'