Kundu Das Sindhi vs The State Of Madhya Pradesh
2022 Latest Caselaw 6792 MP

                                                                             1
                                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                                  AT JABALPUR
                                                                           BEFORE
                                                             HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                                      ON THE 6th OF MAY, 2022

                                                        MISC. CRIMINAL CASE No. 22230 of 2022

                                                Between:-
                                                KUNDU DAS SINDHI S/O LATE SHRI ARJUN DAS ,
                                                AGED ABOUT 40 YEARS, OCCUPATION: BUSINESS
                                                R/O VILLAGE SARAFA BAZAR, TEHSIL- GOPAD
                                                BANAS, P.S. - KOTWALI SIDHI, DISTRICT SIDHI
                                                M.P. (MADHYA PRADESH)

                                                                                                            .....APPLICANT
                                                (BY SHRI SANJAY SINGH, ADVOCATE)

                                                AND

                                                THE STATE OF MADHYA PRADESH THROUGH
                                                POLICE STATION KOTWALI SIDHI DISTRICT SIDHI
                                                M.P. DISTRICT SIDHI M.P. (MADHYA PRADESH)

                                                                                                        .....RESPONDENTS
                                                (BY SHRI )

                                             This application coming on for admission this day, the court passed the
                                       following:
                                                                              ORDER

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

anticipatory bail to the applicant.

The applicant apprehends his arrest in Crime No.261/2022 registered by Police Station - Kotwali, Sidhi, District Sidhi (M.P.) for offence punishable under Section 386/34 of the Indian Penal Code and Sections 3 and 4 of the M.P. Protection of Debtors Act, 1937.

It is pointed out that the applicant has falsely been implicated in the crime and he has not committed any offence in any manner. It is further submitted that the applicant is having no criminal past and he is the first offender. Counsel for the applicant 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 ready to abide by all the terms and conditions that may be imposed by this Court while granting anticipatory bail. On these grounds, he Signature Not Verified SAN

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.05.07 12:03:19 IST prays for granting anticipatory bail to the applicant.

P er contra, counsel appearing for the State has opposed the application stating that there are specific allegation against the present applicant, but he could not dispute the fact that the applicant is the first offender as per the case diary records.

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 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.

Signature Not Verified SAN

7.3. In pith and core, the police officer before arrest must Digitally signed by TAJAMMUL HUSSAIN

put a question to himself, why arrest? Is it really required ? What KHAN Date: 2022.05.07 12:03:19 IST

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.

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, this Court deems it appropriate to disposed of the bail application. 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 cooperated in the investigation and the punishment is of seven years for the aforesaid offence, then the occasion of his arrest should not arise.

In view of above and considering the principles laid down by the Apex Signature Not Verified SAN Court in the case of Arnesh Kumar (Supra), this Court is inclined to allow the application subject to verification of the fact that the applicant is the first Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.05.07 12:03:19 IST

offender 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, 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 as per rules.

(VISHAL MISHRA) JUDGE taj

Signature Not Verified SAN

Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2022.05.07 12:03:19 IST