Rakesh Tiwari vs The State Of Madhya Pradesh
2021 Latest Caselaw 7173 MP

                                                           1                           MCRC-48159-2021
                                The High Court Of Madhya Pradesh
                                        MCRC No. 48159 of 2021
                                          (RAKESH TIWARI Vs THE STATE OF MADHYA PRADESH)


                      Jabalpur, Dated : 09-11-2021
                               Shri Prakash Upadhyay, learned counsel for the applicant.

                               Shri Brijendra Kushwaha, learned Panel Lawyer for the respondent/

State.

Case diary is available.

This first application filed under Section 438 of Cr.P.C. for grant of

anticipatory bail to the applicant, as he is apprehending his arrest in connection with Crime No.750/2021, registered at Police Station- Beohari, District-Shahdol (M.P.) for offences punishable under Section 379, 414, 420, 467, 468, 34 of IPC r/w 4/21 of Mines and Minerals Act.

Prosecution story, in brief, is that on 01.09.2021 applicant alongwith other co-accused persons were found doing illegal mining and transporting sand through their JCB machine and other vehicles.

Learned counsel for the applicant submits that he has been made accused only on the basis of JCB machine bearing registration No.MP18 DA

0245 owned by the applicant. Applicant was not present on the spot and his aforesaid vehicle JCB machine was found near his field. There was no manipulations in the engine and chasis number in the said vehicle, therefore, no offence punishable under Sections 467 and 468 of IPC is made out against the applicant. Rest of other offences are punishable not more than 7 years of imprisonment. Applicant custodial interrogation is not required. There is nothing on record, which implicates the applicant in the crime. Therefore, prayer is made to enlarge the applicant on bail.

Learned counsel for the State has opposed the application and submits that applicant's JCB machine was found on the spot and applicant was very well involved in illegal mining and transporting sand, therefore, he is not entitled to be enlarged on bail. He further fairly conceded that there were no Signature Not SAN Verified manipulation in the engine and chasis number of the JCB owned by the Digitally signed by VINAY KUMAR BURMAN Date: 2021.11.09 17:29:53 IST 2 MCRC-48159-2021 applicant.

Having considered the rival submissions of the parties and also considering other facts and circumstances of the case, although I am not inclined to allow this bail application, however, looking to the facts that no manipulation in the engine and chasis were found in the JCB owned by the

applicant and offence under Section 467 and 468 prima facie is not made out against the applicant and rest of the offences alleged against the applicant 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. exists. 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 applicant fails 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) That, if the applicant is arrested and he wants to file application under Section 437 of Cr.P.C. for regular bail before lower Court, then he will be produced before the lower Court without any delay.

Lower Court is also directed to consider his bail application as expeditiously as possible, preferably, on the same day.

Signature
 SAN      Not
Verified

Digitally signed by
VINAY KUMAR
BURMAN
Date: 2021.11.09
17:29:53 IST
                                                           3                          MCRC-48159-2021

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

                                                                    (SATYENDRA KUMAR SINGH)
                                                                             JUDGE

                      vinay




Signature
 SAN      Not
Verified

Digitally signed by
VINAY KUMAR
BURMAN
Date: 2021.11.09
17:29:53 IST