Madhya Pradesh High Court
Ramlal Sharma vs The State Of Madhya Pradesh on 16 February, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 16th OF FEBRUARY, 2022
CRIMINAL APPEAL No. 186 of 2022
Between:-
RAMLAL SHARMA S/O LATE SHRI RAMKUMAR
SHARMA , AGED ABOUT 57 YEARS, OCCUPATION:
GOVT. CONTRACTOR AAMA DAAD COLONY
QUARTER NO.-4/32 GOVINDA COLLIERY P.S. AND
TEH. KOTMA DIST. ANUPPUR MP (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI SHARAD KUMAR SHUKLA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. P.S. P.S.
BHALUMADA DIST. ANUPPUR MP (MADHYA
PRADESH)
2. HANUMAN PRASAD MOGRE S/O NOT KNOWN V.T
CENTRE NEAR CENTRAL SCHOOL JAMNA
COLLIERY P.S BHALUMADA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANIL UPADHYAY, PANEL LAWYER FOR RESPONDENT
NO.1)
T h is appeal coming on for admission this day, the court passed the
following:
ORDER
T he present appeal has been filed under Section 14-A of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity 'the
Act') against the order dated 22.12.2021 passed by Special Judge, SC/ST
(Prevention of Atrocities) Act, Anuppur (MP), whereby the application of the
appellant under Section 438 of Cr.P.C. seeking bail has been rejected.
Appellant is apprehending his arrest in connection with Crime No.428/2021
registered at Police Station- Bhalumada, District Anuppur (MP) for the offence
punishable under Sections 420 and 386 of Indian Penal Code read with Sections 3
and 4 of M.P. Riniyon Ka Sanrakshan Adhiniyam and Sections 3(2 (v) of the
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SC/ST (Prevention of Atrocities) Act.
Digitally signed by TAJAMMUL HUSSAIN It is submitted by the counsel for the appellant that the appellant has falsely
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been implicated in the matter and has not committed any offence in any manner. It
is argued that there was a monetary transaction dispute between the appellant and
the complainant. The appellant has produced the cheque before the Bank for
encashment but the same was dishonored. The appellant filed a case under Section
138 of the Negotiable Instruments Act against the complainant. The complainant to
protect himself from the prosecution under Section 138 of the Negotiable
Instruments Act has registered a false case against the appellant. Counsel for the
appellant has placed reliance upon the judgment passed by the Hon'ble Supreme
Court in the case of Arnesh Kumar Vs.State of Bihar, reported in (2014) 8
SCC 273 and on the question of maintainability he has further relied upon order
dated 12.05.2020 passed by a Coordinate Bench of this Court in the case of
Balveer Singh Bundela vs. State of M.P. (M.Cr.C.No.5621/2020) wherein,
considering the maintainability of bail application under Section 438 of Cr.P.C. in
the event when the proceedings under Section 82 of Cr.P.C. were initiated and by
taking into consideration several judgments passed by Hon'ble Supreme Court, it
was held that the application under Section 438 of Cr.P.C. is maintainable.. The
appellant is the first offender having no criminal history. The appellant is a reputed
Government contractor and is ready to abide by all the terms and conditions that
may be imposed by this Court while granting anticipatory bail. On these grounds,
he prays for granting anticipatory bail to the appellant.
Counsel appearing for the State has vehemently opposed the application
stating that there are specific allegations against the present appellant for
commission of offence. There is a specific bar under Section 18 of the SC/ST Act
for entertaining the application for grant of anticipatory bail.
Heard the learned counsel for the parties and perused the record.
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
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Digitally signed by TAJAMMUL HUSSAIN
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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 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 subclauses (a) to (e) of clause (1) of
Section 41 Cr.P.C.
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9. Another provision i.e. Section 41-A Cr.P.C. Aimed to
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avoid unnecessary arrest or threat of arrest looming large on the
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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."
Considering the overall facts and circumstances of the case, this Court
deems it appropriate to dispose of the appeal for anticipatory bail application
subject to verification of the fact that the appellant is the first offender. In
view of the principles laid down by the Supreme Court in the case of Arnesh
Kumar (supra), the appellant should first be summoned to cooperate in the
investigation. If the appellant cooperate and the punishment is of seven years for
the aforesaid offence, and without commenting upon the merits of the case and in
the investigation then the occasion of his/her arrest should not arise.
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 appellant fails to cooperate in the investigation.
(ii) That, the appellant should first be summoned to cooperate in the
investigation. If the appellant cooperate in the investigation then the occasion of
his arrest should not arise.
With the aforesaid directions, the present anticipatory bail application
stands disposed of.
Let E-copy of this order be sent to the trial Court concerned for
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information.
Digitally signed by TAJAMMUL HUSSAIN
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Certified copy/ e-copy as per rules/directions.
Date: 2022.02.17 14:46:28 IST
(VISHAL MISHRA)
JUDGE
taj
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Digitally signed by TAJAMMUL HUSSAIN
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Date: 2022.02.17 14:46:28 IST
