Madhya Pradesh High Court
Akhilesh Jain vs The State Of Madhya Pradesh on 12 January, 2022
Author: Deepak Kumar Agarwal
1 MCRC-64095-2021
The High Court Of Madhya Pradesh
MCRC No. 64095 of 2021
(AKHILESH JAIN Vs THE STATE OF MADHYA PRADESH)
Gwalior, Dated : 12-01-2022
Heard through Video Conferencing.
Mr. Ankur Maheshwari, learned counsel for the applicant.
Mr. B.M. Shrivastava, learned Public Prosecutor for the
respondent/State.
Heard on the first application under section 438 of Cr.P.C. filed by the
applicant for grant of anticipatory bail.
T h e applicant is apprehending his arrest in connection with Crime
No.896/2021 registered at Police Station Kotwali, District Guna (MP) for the
offence punishable under Sections 419, 420 of IPC and Section 103 and 104
of Trade Mark Act.
As per the prosecution story, on 05.12.2021 shop of applicant/accused
namely Rasila Paan Bhandar was checked by I.P. Investigation and Detective
Service Pvt. Ltd. along with police personnel of Police Station Kotwali,
District Guna and found 600 duplicate boxes of Midland cigarette. size of
boxes was also different from original boxes. One person who was present
on the shop, disclosed his name as Akhilesh Jain. Thereafter on the complaint
of Investigating Agency, crime under Section 419 and 420 of IPC bearing
No.896/2021 was registered. From the possession of the applicant, 500
boxes of cigarette were seized. Notice under Section 41(1)-A(2) of Cr.P.C.
has been given to the applicant with a direction that on 03.01.2022, charge-
sheet is going to be filed against him before the competent Court. Thereafter,
charges under Section 103 and 104 of TM Act was enhanced.
Learned counsel for the applicant submits that during investigation,
police has not arrested the present applicant. It is further submitted that
charge sheet is ready and very soon, it is going to be filed before the
competent Court, therefore, there is no need for custodial interrogation of the
present applicant in the matter. In support of his arguments, he has relied
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upon the judgment passed by the Hon'ble Supreme Court in the case of
Siddarth Vs. The State of Uttar Pradesh and Ors. reported in 2021(4)
RCR (Criminal) 1, wherein the Hon'ble Supreme Court has held as under:-
"11. We are in agreement with the aforesaid view of the High
Courts and would like to give our imprimatur to the said judicial
view. It has rightly been observed on consideration of Section 170
of the Cr.P.C. that it does not impose an obligation on the Officer-
in-charge to arrest each and every accused at the time of filing of
the chargesheet. We have, in fact, come across cases where the
accused has cooperated with the investigation throughout and yet
on the chargesheet being filed non-bailable warrants have been
issued for his production premised on the requirement that there is
an obligation to arrest the Accused and produce him before the
court. We are of the view that if the Investigating Officer does not
believe that the accused will abscond or disobey summons he/she
is not required to be produced in custody. The word "custody"
appearing in Section 170 of the Cr.P.C. does not contemplate
either police or judicial custody but it merely connotes the
presentation of the Accused by the Investigating Officer before the
court while filing the chargesheet.
12. We may note that personal liberty is an important aspect of our
constitutional mandate. The occasion to arrest an accused during
investigation arises when custodial investigation becomes necessary
or it is a heinous crime or where there is a possibility of influencing
the witnesses or accused may abscond. Merely because an arrest
can be made because it is lawful does not mandate that arrest must
be made. A distinction must be made between the existence of the
power to arrest and the justification for exercise of it. If arrest is
made routine, it can cause incalculable harm to the reputation and
self-esteem of a person. If the Investigating Officer has no reason
to believe that the Accused will abscond or disobey summons and
has, in fact, throughout cooperated with the investigation we fail to
appreciate why there should be a compulsion on the officer to
arrest the accused.
13. We are, in fact, faced with a situation where contrary to the
observations in Joginder Kumar's case how a police officer has to
deal with a scenario of arrest, the trial courts are stated to be
insisting on the arrest of an accused as a pre-requisite formality to
take the chargesheet on record in view of the provisions of Section
170 of the Cr.P.C. We consider such a course misplaced and
contrary to the very intent of Section 170 of the Cr.P.C."
Further he has also relied upon the judgment passed by the Hon'ble
Supreme Court in the case of Satendra Kumar Antil Vs. Central Bureau
of Investigation and Ors. reported in 2021 (4) Crimes 139 (SC), wherein,
the Hon'ble Supreme Court has issued certain guidelines/categories which are
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as follows:-
"Category A:-
After filing of Charge-sheet/complaint taking of cognizance--
(a) Ordinary summons at the 1st 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) NBW on failure to failure to appear despite issuance of Bailable
Warrant.
( d ) NBW 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
Accused before execution of the NBW on an undertaking of the
Accused to appear physically on the next date/s of hearing.
( e ) Bail Applications of such Accused on appearance may be
decided w/o the Accused being taken] in physical custody or by
granting Interim Bail till the Bail Application is decided."
Learned counsel for the State has vehemently opposed the bail
application. During arguments, he submits that anticipatory bail is not tenable
in the present facts and circumstances of the case.
Heard learned counsel for the parties at length and considered the
arguments advanced by them and perused the record.
Looking to the present facts and circumstances of the case and
considering the law laid down by the Hon'ble Supreme Court in the case of
Satendra Kumar Antil and Siddarth (Supra), but without commenting on
merits of the case, the application is allowed. It is directed that in the event of
arrest, applicant be released on bail on furnishing a personal bond in the sum
of Rs.25,000/- (Rs. Twenty Five Thousand Only) with two solvent
sureties of the like amount to the satisfaction of the Arresting
Authority/Investigating Officer.
T h e applicant shall cooperate in the trial and shall apply regular
application before the trial Court as and when required. He shall further abide
by the other conditions enumerated in sub-section (2) of Section 438 of
Cr.P.C.
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With the aforesaid directions, the present application stands disposed
of.
Certified copy/ e-copy as per rules/directions.
(DEEPAK KUMAR AGARWAL)
JUDGE
bj/-
BARKHA
SHARMA
2022.01.1
2 16:31:15
+05'30'
