Nayan Kushwaha vs The State Of Madhya Pradesh
2021 Latest Caselaw 6200 MP

                                                          1                              MCRC-40981-2021
                                The High Court Of Madhya Pradesh
                                          MCRC-40981-2021
                                        (NAYAN KUSHWAHA Vs THE STATE OF MADHYA PRADESH)


                      Jabalpur, Dated : 29-09-2021
                               Heard through Video Conferencing.

                               Shri Hakim Khan, learned counsel for the applicant.
                               Shri Akhilendra Singh, learned Govt. Advocate for the respondent/

State.

Shri Pramod Nair, learned counsel for the objector/complainant.

This first application filed under Section 438 of Cr.P.C. for grant of anticipatory bail to the applicant, as she is apprehending her arrest in connection with Crime No.389/2021, registered at Police Station- Berasi, District-Bhopal (M.P.) for offences punishable under Section 420 and 34 of the IPC.

Prosecution story, in brief, is that the applicant, being power of attorney holder of complainant-Manoj Pandey, in connivance with other co- accused persons misappropriated an amount of Rs.23,36,000/- received from the complainant through NEFT mode and without paying the same to the co-

accused -Inder Singh, got executed the sale deed from co-accused-Inder Singh in favour of the complainant for the mortgaged land different from the land shown to the complainant.

Learned counsel for the applicant submits that the applicant is a public servant and she paid all the consideration amount received from the complainant to the seller -Inder Singh through cheque. She was responsible only to get the property registered in the name of complainant and not to verify the property and any loan upon it. Complainant was very well aware about the land for which registered sale deed has been executed. Co- accused-Inder Singh did not disclose the fact about the loan taken from the said land from the Allahabad bank. No case of cheating is made out against the applicant, therefore, she is entitled for anticipatory bail. Signature Not SAN Verified Per-contra learned counsel for the respondent/ State as well as learned Digitally signed by TULSA SINGH Date: 2021.09.29 16:34:34 IST 2 MCRC-40981-2021 counsel for the objector/complainant oppose the said application for grant of anticipatory bail to the applicant and submit that the applicant has not paid the consideration amount to Inder Singh and has misappropriated the whole amount. She along with other co-accused persons cheated the complainant. Knowing the fact that there was a loan on the said property, got executed the

sale deed of the same in the name of complainant. Investigation is at the preliminary stage and in case the applicant is enlarge on anticipatory bail , it will affect the investigation.

Having considered the rival submissions of learned counsel for the parties and also considering the facts and circumstances of the case, this Court is not inclined to allow this bail application. However, looking to the fact that the offences involved in the case 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 s even 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-accused is arrested and he wants to file Signature SAN Not Verified

Digitally signed by TULSA SINGH Date: 2021.09.29 16:34:34 IST 3 MCRC-40981-2021 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.

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

                                                                  (SATYENDRA KUMAR SINGH)
                                                                           JUDGE


                      ts




Signature
 SAN      Not
Verified

Digitally signed by
TULSA SINGH
Date: 2021.09.29
16:34:34 IST