Makhanlal Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 4468 MP

                                                               1
                           IN     THE        HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                                 ON THE 21 st OF MARCH, 2023
                                          MISC. CRIMINAL CASE No. 11313 of 2023

                          BETWEEN:-
                          MAKHANLAL SHARMA S/O SHRI KALI CHARAN
                          SHARMA, AGED ABOUT 80 YEARS, HOUSE NO. 723 P-1
                          BLOCK SULTANPURI NORTH WEST DELHI (DELHI)

                                                                                             .....APPLICANT
                          (SHRI R.K. SHARMA, LEARNED SENIOR COUNSEL WITH                          SHRI
                          MAHENDRA CHAUDHARY, LEARNED COUNSEL FOR APPLICANT)

                          AND
                          THE STATE OF MADHYA PRADESH INCHARGE POLICE
                          STATION THROUGH POLICE STATION PORSA (MADHYA
                          PRADESH)

                                                                                          .....RESPONDENTS
                          (SHRI SUSHANT TIWARI, LEARNED PUBLIC PROSECUTOR FOR STATE
                          AND SHRI PRASUM KUMAR MAHESHWRI, LEARNED COUNSEL FOR
                          RESPONDENT [COMP])

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

This is 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.522/2022 registered at Police Station Porsa, District Morena for the offence punishable under Sections 420, 406, 34 of IPC.

Cheating and forgery are alleged against the applicant. It is submitted by counsel for the applicant that applicant has falsely been Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 3/21/2023 7:18:52 PM

implicated in the present case and he has not committed any offence in any manner. Hence, learned counsel prayed to allow 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 Public Prosecutor 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 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.

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 Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 3/21/2023 7:18:52 PM

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

Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 3/21/2023 7:18:52 PM

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) JUDGE ojha

Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 3/21/2023 7:18:52 PM