Mukesh Patel vs The State Of Madhya Pradesh
2022 Latest Caselaw 56 MP

                                                                         1                           MCRC-63267-2021
                                            The High Court Of Madhya Pradesh
                                                    MCRC No. 63267 of 2021
                                                         (MUKESH PATEL Vs THE STATE OF MADHYA PRADESH)


                                    Jabalpur, Dated : 03-01-2022
                                           Shri Anil Lala, learned counsel for the applicant.

                                           Shri Tapan Bathre, learned Panel Lawyer for the respondent/State.

This is first application under Section 438 of CrPC for grant of anticipatory bail.

T h e applicant apprehends his arrest in Crime No.1116/2021

registered by Police Station Panagar, District- Jabalpur (M.P.) for offence punishable under Section420 of the IPC and Section 3/7 of Essential Commodities Act.

It is submitted that the applicant is an office bearers of a Co-operative Society holding the post of salesman at fair price shop Majhgawan. False FIR has been registered against the applicant alleging violation of Clause 10(4), 11(1), 11(2), 11(8) and 18 of the Control Order, 2015 as per the control order, registration of FIR is prescribed only in case of violation of Clause 13 for a quantity of more than 10% of monthly allocation or repetition of

violation under the same clause. He 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. The applicant is the first offender 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 applicant.

P e r contra, counsel appearing for the State has opposed the application. The applicant is the first offender as per the case diary record. In view of the aforesaid, he prays for dismissal of this anticipatory bail application.

Heard the learned counsel for the parties and perused the case diary. For ready reference and convenience the guidelines laid down by the Supreme Court in the case of Arnesh Kumar (Supra) are enumerated Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.01.05 10:54:38 IST 2 MCRC-63267-2021 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 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, Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.01.05 10:54:38 IST 3 MCRC-63267-2021 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."

Considering the overall facts and circumstances of the case and the fact that the applicant is the first offender, this Court deems it appropriate to disposed of the bail application subject to verification of the fact that the applicant is the first offender. In view of the principles laid down by the Supreme Court in the case of Arnesh Kumar (supra). The applicant should first be summoned to cooperate in the investigation. If the applicant cooperate and the punishment is of seven years for the aforesaid offence, Signature Not Verified SAN then the occasion of his/her arrest should not arise.

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.01.05 10:54:38 IST 4 MCRC-63267-2021 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 fails to cooperate in the investigation.

(ii) That, the applicant should first be summoned to cooperate in the investigation. If the applicant cooperate in the investigation then the occasion 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

sj

Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.01.05 10:54:38 IST