Prabhulal Meena vs The State Of Madhya Pradesh
2021 Latest Caselaw 6888 MP

                                                                    1                            MCRC-41811-2021
                                         The High Court Of Madhya Pradesh
                                                   MCRC-41811-2021
                                                  (PRABHULAL MEENA Vs THE STATE OF MADHYA PRADESH)

                                 6
                                 Jabalpur, Dated : 27-10-2021

                                        Shri S.B. Shrivastava, learned counsel for the applicant.
                                        Shri Harsh Gupta, learned Panel Lawyer for the respondent/State.

Case diary is available.

This is first application under Section 438 of CrPC for grant of

anticipatory bail.

The applicant apprehends his arrest in Crime No.397/2021 registered by Police Station Baghsewaniya, District-Bhopal for offence punishable under Section 420, 406, 34 of IPC.

It is submitted that the applicant has been falsely implicated in the case. He has not committed the offence in any manner. It is alleged that applicant is about 88 years of age and the allegation is that he has got executed an agreement with the complainant and has taken some money despite of the fact that he was not the owner of the property in question.

It is submitted that against the judgment dated 7.4.2015 an appeal is filed pending consideration before this Court wherein there is interim order in operation. He is ready to cooperate in the investigation and looking to the age of applicant he prays for grant of anticipatory bail, in the light of Arnesh Kumar case. Applicant is the first offender and no other case have been registered against the present applicant.

Counsel for the State has opposed the application and submitted that applicant is being made an accused on the basis of memorandum of the other co-accused persons recorded under Section 27 of Evidence Act. He further submits that investigation is still pending in the matter. He fairly submits that applicant is the first offender as per the case diary record.

Heard the learned counsel for the parties and perused the case diary. Signature Not Verified

Considering the overall facts and circumstances of the case and SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.10.28 17:00:36 IST 2 MCRC-41811-2021 looking to the age of the applicant, this Court deems it appropriate to disposed of the bail application in view of the principles laid down by the

Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273. The applicant should first be summoned to cooperate in the investigation. If the applicant cooperate in the investigation

then the occasion of his/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 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 Signature Not Verified

writing for not making the arrest.

  SAN




Digitally signed by MOHD IRFAN
SIDDIQUI
Date: 2021.10.28 17:00:36 IST
                                                                      3                         MCRC-41811-2021

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), 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 applicant fail to cooperate in the investigation.

(ii) That, the applicant should first be summoned to cooperate in the Signature Not Verified SAN investigation. If the applicant cooperate in the investigation then the occasion

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.10.28 17:00:36 IST 4 MCRC-41811-2021 of his arrest should not arise.

With the aforesaid directions, subject to verification that the applicant is the first offender, the present anticipatory bail application stands disposed of.

Let E-copy of this order be sent to the trial Court concerned for information.

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

(VISHAL MISHRA) JUDGE

irfan

Signature Not Verified SAN

Digitally signed by MOHD IRFAN SIDDIQUI Date: 2021.10.28 17:00:36 IST