Madhya Pradesh High Court
Rahees Khan vs The State Of Madhya Pradesh on 18 April, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 18 th OF APRIL, 2023
CRIMINAL APPEAL No. 5067 of 2023
BETWEEN:-
1. RAHEES KHAN S/O SHRI AJMER KHAN, AGED
ABOUT 35 YEARS, R/O VILLAGE PANDOKHAR
POLICE STATION PANDOKHAR DISTT. DATIA
(MADHYA PRADESH)
2. MUKADDAR KHAN S/O ABDUL KHAN, AGED
ABOUT 33 YEARS, OCCUPATION: LBOUR R/O
VILLAGE PANDOKHAR POLICE STATION
PANDOKHAR DISTT. DATIA (MADHYA
PRADESH)H)
.....APPELLANTS
(BY SHRI RAVI SHANKAR GUPTA- ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
STATION HOUSE OFFICER OF POLICE STATION
PANDOKHAR DISTT. DATIA (MADHYA PRADESH)
2. COMPLAINANT OF CRIME NO 50/2023
REGISTERED AT POLICE STATION PANDOKHAR
DISTT. DATIA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI A.P.S.TOMAR- PUBLIC PROSECUTOR FOR RESPONDENT
NO.1/STATE
BY SHRI SUSHANT TIWARI- ADVOCATE FOR RESPONDENT NO.2)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
Signature Not Verified
Present Criminal Appeal has been filed under Section 14-A (1) (2) of
Signed by: MADHU
SOODAN PRASAD
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
Signing time: 19-04-2023
10:44:44 AM
against the order dated 05.04.2023 passed by Special Judge, Datia, whereby the
application of the appellants under Section 438 of Cr.P.C. for grant of
anticipatory bail has been rejected.
T h e appellants apprehend their arrest in connection with Crime
No.50/2023 registered at Police Station- Pandokhar, District- Datia (M.P.) in
relation to the offence punishable under Sections 294, 323, 506, 34 of IPC and
Sections 3(1)(r)(s) & 3(2)(v-a) of SC/ST Act.
Learned counsel for the appellants/accused submits that appellants are
innocent and have been falsely implicated in the case. There is no likelihood of
their absconsion. They will cooperate in the investigation. It is further submitted
that the appellants are reputed citizens of the society and if they are sent to jail
then their social reputation would get diminished. It is further submitted that in
the light of judgment rendered by Hon'ble Supreme Court in the matter of
Arnesh Kumar Vs. State of Bihar [(2014) 8 SCC 2731)] this application
may be allowed.
Learned counsel for the State opposed the criminal appeal and prayed for
its rejection.
Heard learned counsel for the parties at length and considered the
arguments advanced by them and perused the available case-diary.
Considering the facts and circumstances of the case, since the offence in
question attracts punishment less than 7 years, therefore, in view of the
principles laid down by the Supreme Court in the case of Arnesh Kumar
(Supra), it is directed that police may resort to the extreme step of arrest only
when the same is necessary and the appellants do not cooperate in the
Signature Not Verified
investigation. The appellants should first be summoned to cooperate in the
Signed by: MADHU
SOODAN PRASAD
Signing time: 19-04-2023
10:44:44 AM
investigation. If the appellants cooperate in the investigation, then the occasion
of their 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 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
Signature Not Verifiedinformation and material that the accused has committed the
Signed by: MADHU
SOODAN PRASAD offence. Apart from this, the police officer has to be satisfied
Signing time: 19-04-2023
10:44:44 AM 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
b e 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."
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 appellants fail to cooperate in the investigation.
(ii) That, the appellants should first be summoned to cooperate in the
investigation. If the appellants cooperate in the investigation then the occasion
of their arrest should not arise.
With the aforesaid directions, the present appeal stands disposed of.
Copy of this order be sent to the trial Court concerned for compliance.
Certified copy as per rules.
Signature Not Verified
Signed by: MADHU (DEEPAK KUMAR AGARWAL)
SOODAN PRASAD
Signing time: 19-04-2023
JUDGE
10:44:44 AM ms/-
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 19-04-2023
10:44:44 AM
