Bhagwat Sahay Saxena vs The State Of Madhya Pradesh
2022 Latest Caselaw 3419 MP

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         THE HIGH COURT OF MADHYA PRADESH
                       MCRC 11462/2022
             (Bhagwat Sahay Saxena Vs. State of M.P.)

Gwalior, Dated: 10.03.2022
      Shri Vijay Kumar Jha, learned Counsel for the applicant.

      Shri Lokendra 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.

The applicant is apprehending his arrest in connection with

Crime No.06/2022 registered at Police Station Amola, District

Shivpuri for the offence punishable under Section 3/7 of Essential

Commodities Act.

Petitioner who has no criminal antecedents being Manager of

fair price shop is alleged with breach of PDS control order in respect

of offence punishable u/S.3/7 of Essential Commodities Act where the

maximum punishment attracted is seven years.

It is submitted by counsel for the applicant that applicant has

falsely been implicated in the present case and he has not committed

any offence in any manner. Hence, learned counsel prayed to dispose

of this application for anticipatory bail in the light of the judgment

passed by the Supreme Court in the case of Arnesh Kumar Vs. State

of Bihar:[(2014) 8 SCC 273].

Learned Panel Lawyer for the respondent/State opposed the

prayer and prayed for rejection of the application.

Heard learned counsel for the parties at length and perused the

case diary.

The Hon'ble Supreme Court in the case of Arnesh Kumar

(supra) has directed that in offences involving punishment upto seven

years imprisonment the police may resort to the extreme step of arrest

only when the same is necessary and the petitioner does not cooperate

in the investigation. The petitioner should first be summoned to

cooperate in the investigation. If the petitioner cooperates in the

investigation then the occasion of his arrest should not arise.

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 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 M.Cr.C. No.9099/2022 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 sub- clauses (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 vitalised. 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 the Magistrate as aforesaid."

In view of above, present anticipatory bail application is

disposed of in the light of law laid down by Hon'ble Apex Court in the

case of Arnesh Kumar (supra).

(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.

With the aforesaid directions, the present first anticipatory bail

application stands disposed of.

Certified copy as per rules.

                                          (Deepak Kumar Agarwal)
YOGENDR                                          Judge
A ojha
   OJHA
2022.02.2
2 02:22:03
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