Ku. Shivani Kushwah vs The State Of Madhya Pradesh
2023 Latest Caselaw 10078 MP

                                                             1
                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT GWALIOR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                                  ON THE 4 th OF JULY, 2023
                                            CRIMINAL APPEAL No. 6565 of 2023

                         BETWEEN:-
                         KU. SHIVANI KUSHWAH D/O SHRI RAMPAL KUSHWAH,
                         AGED ABOUT 23 YEARS, OCCUPATION: STUDENT R/O
                         KASWA INDARGADH P.S. INDARGARH , DISTRICT
                         DATIA (MADHYA PRADESH)

                                                                                          .....APPELLANT
                         (SHRI JAI PRAKASH KUSHWAH, LEARNED COUNSEL FOR THE
                         APPELLANT)

                         AND
                         THE STATE OF MADHYA PRADESH INCHARGE POLICE
                         STATION THROUGH POLICE STATION INDARGARH ,
                         DISTRICT DATIA (MADHYA PRADESH)

                                                                                        .....RESPONDENT
                         (SHRI VIRENDRA PAL- LEARNED COUNSEL FOR THE RESPONDENT-
                         STATE)

                               This appeal coming on for admission this day, th e court passed the
                         following:
                                                              ORDER

Present Criminal Appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the order dated 12-04-2023 passed by Special Judge, (Atrocities), Datia, whereby the application of the appellant under Sections 438 of Cr.P.C. for grant of anticipatory bail has been rejected.

The appellant apprehends his arrest in connection with Crime No.140 of 2023 registered at Police Station Indargarh, District- Datia (M.P.) in relation to Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/5/2023 6:44:54 PM

the offence punishable under Sections 294, 337 of IPC and Sections 3(1)(r)(s) of SC/ST Act.

Learned counsel for the appellant submits that appellant is a girl aged about 23 years and is a student. She is innocent and has been falsely implicated in the case. There is no likelihood of her absconsion. She will cooperate in the investigation. It is further submitted that if she will send to jail then her 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 appellant do not cooperate in the investigation. The appellant should first be summoned to cooperate in the investigation. If the appellant cooperate in the investigation, then the occasion of her/her 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/5/2023 6:44:54 PM

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 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/5/2023 6:44:54 PM

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 appellant fails to cooperate in the investigation.

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

(DEEPAK KUMAR AGARWAL) JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 7/5/2023 6:44:54 PM