Ajay Pawar vs The State Of Madhya Pradesh
2022 Latest Caselaw 1679 MP

                                                        1
                        IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                             ON THE 7th OF FEBRUARY, 2022

                                    MISC. CRIMINAL CASE No. 64588 of 2021

                              Between:-
                              AJAY PAWAR S/O SHANKAR PAWAR , AGED
                              ABOUT 31 YEARS, OCCUPATION: LABOUR
                              VILLAGE BHAGGU DHANA VINOBA WARD
                              TEH.AND DIST.BETUL (MADHYA PRADESH)

                                                                                    .....PETITIONER
                              (BY SHRI SURDEEP KHAMPARIYA, ADVOCATE)

                              AND

                              THE STATE OF MADHYA PRADESH THROUGH
                              P.S.  HOSHANGABAD    P.S.HOSHANGABAD
                              (MADHYA PRADESH)

                                                                                 .....RESPONDENTS
                              (BY SHRI YOGENDRA DAS YADAV, GOVERNMENT ADVOCATE)
                                           (Heard through Video Conferencing)
                            This application coming on for admission this day, the court passed
                      the following:
                                                         ORDER

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

anticipatory bail who is apprehending his arrest in connection with case Crime No.437/2021 registered at Police Station Dehat, District Hoshangabad (M.P.) for offences punishable under Sections 457 and 380 of I.P.C.

It is submitted that applicant has been made an accused on the basis of memorandum given by co-accused Babu @ Rajkumar. The allegation on the present applicant is of purchasing stolen property and, therefore, offence under Section 380 or 457 of I.P.C. will not be made out and at best, the offence under Section 411 of I.P.C. will be made out for which maximum imprisonment is of three years and, therefore, in the light of the law laid down in the case of Arnesh Kumar versus State of Bihar & Another (2014) 8 SCC 273, the police authority should have given notice under Section 41-A of Cr.P.C. but no such notice has been issued to the applicant. He has no Signature SAN Not Verified

Digitally signed by VAIBHAV YEOLEKAR Date: 2022.02.09 18:52:01 IST

criminal history. He is ready to cooperate with the investigation.

Learned Government Advocate admits that offence which will be made out against the present applicant on the basis of memorandum of co-accused is under Section 411 of I.P.C. It is further submitted that police authorities have not issued notice under Section 41-A Cr.P.C. in terms of the requirement of law laid down in the case of Arnesh Kumar (supra).

After issuance of notice under Section 41-A of Cr.P.C., applicants have not been arrested and charge-sheet has been filed, therefore, it is evident that Investigating Officer has no intention of arresting the applicants, and therefore, this case can be disposed of in the light of law laid down in the judgment of Supreme Court in case of Satender Kumar Antil Vs. Central Bureau of Investigation and Others in Special Leave to Appeal (Criminal) No.5191/2021 decided on 7.10.2021 directed the applicant to appear before the trial Court upon filing of the charge-sheet and to move application for bail and the trial Court shall consider such application in terms of the direction issued by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation (supra).

On going through the judgment passed by the Supreme Court in the case of Satender Kumar Antil versus Central Bureau of Investigation (supra), it is apparent that the applicant has been charged for the offence punishable with imprisonment of seven years or less not falling in category B&D. It is held that if applicant is not arrested during investigation and has cooperated throughout in the investigation including appearing before the Investigating Officer whenever called then after filing of charge sheet/complaint, following courses should be adopted, namely, (a) ordinary summons at the first instance/including permitting appearance through lawyer;

(b) if such an accused does not appear despite service of summons then bailable warrant for physical appearance may be issued; (c) Non-bailable warrant on failure to appear despite issuance of bailable warrant; (d) non- bailable warrant may be cancelled or converted into a bailable

warrant/summons without insisting physical appearance of accused, if such an application is moved on behalf of the applicant before execution of the non-bailable warrant on an undertaking of the accused to appear physically on the next date(s) of hearing; and (e) bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided.

In the same terms, the present anticipatory application is disposed of directing the applicant to appear before the trial Court and move bail application which trial Court shall consider in the light of Satender Kumar Antil Vs. Central Bureau of Investigation and Others (supra).

In above terms, this anticipatory bail application is disposed of.

(VIVEK AGARWAL) JUDGE vy