Manoj Banskar vs The State Of Madhya Pradesh
2023 Latest Caselaw 17074 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                      BEFORE
                                         HON'BLE SMT. JUSTICE SUNITA YADAV
                                              ON THE 13 th OF OCTOBER, 2023
                                         MISC. CRIMINAL CASE No. 44584 of 2023

                           BETWEEN:-
                           1.    MANOJ BANSKAR S/O SHRI BHAGWANDAS
                                 BANSKAR,    AGE   34   YEARS, OCCUPATION:
                                 LABOUR, R/O VILLAGE RICHRA KUMHEDI,
                                 POLICE STATION CIVIL LINE, DISTRICT DATIA
                                 (MADHYA PRADESH)

                           2.    MUKESH BANSKAR S/O SHRI NATHRAM
                                 BANSKAR, AGED ABOUT 30 YEARS, OCCUPATION:
                                 L A B O U R , R/O VILLAGE CHIROLI, POLICE
                                 STATION       DHEERPURA,  DISTRICT  DATIA
                                 (MADHYA PRADESH)

                                                                                          .....APPLICANT
                           (SHRI RAVI SHANKAR GUPTA- ADVOCATE)

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

                                                                                       .....RESPONDENT
                           (SHRI ROHIT MISHRA- PUBLIC PROSECUTOR FOR RESPONDENT/STATE)

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

This is the second bail application filed by the applicant under Section 438 of the Cr.P.C. for grant of anticipatory bail relating to FIR No.133/2023 registered at Police Station Jigna, District Datia (M.P.) for the offence under Section 34 (2) of M.P. Excise Act.

First application was decided in M.Cr.C. No.35517/2023 by order dated Signature Not Verified Signed by: SHIVANI SINGH RAJPUT Signing time: 13-10-2023 06:22:29 PM

25.08.2023 granting interim anticipatory bail for a period of 15 days and directing to applicants-accused to surrender before the Trial Court thereafter, the applicants-accused surrendered before the Trial Court and filed the application under Section 439 of Cr.P.C. which was dismissed. However, applicants-accused were not taken into custody, in view of the order of anticipatory bail.

Allegation against the present applicants-accused is that 60 litres of country-made liquor without having any license was seized from the joint custody of present applicants-accused.

Learned counsel for the applicants argued that the applicants are innocent

and have been falsely implicated. Further submission is that earlier applicants- accused were given a notice under Section 41-A of Cr.P.C. without indicating any date of appearance. They cooperated in the investigation. However, without mentioning the date of appearance, they could not appear before the learned Trial Court. In these circumstances in the light of case of Arnesh Kumar vs. State of Bihar reported in (2014) 8 SCR 128, applicants-accused are entitled to get benefit of anticipatory bail. It is further argued that applicants are permanent resident of District Datia (M.P.) and there is no possibility of his absconsion or tampering with the prosecution evidence. With the aforesaid submissions, he prays for grant of anticipatory bail to the applicant.

O n the other hand, learned State counsel opposed the application and prayed for its rejection.

Heard learned counsel for the rival parties and perused the case diary available on record.

For ready reference and convenience the guidelines laid down by the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar [(2014) 8 Signature Not Verified Signed by: SHIVANI SINGH RAJPUT Signing time: 13-10-2023 06:22:29 PM

SCC 273] 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 information and material that the accused has Signature Not Verified Signed by: SHIVANI SINGH RAJPUT Signing time: 13-10-2023 06:22:29 PM

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, but without expressing any opinion on the merits of the case and in the light of the judgment passed by the Supreme Court in the case of Arnesh Kumar (supra), this Court deems it appropriate to allow this application for grant of anticipatory bail. In the event of arrest, the applicants are directed to be released on bail on furnishing a surety bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with two solvent sureties in the like amount to the satisfaction of Arresting Officer.

T he applicants are directed to cooperate in investigation. In case of failure to cooperate, the bail granted by this Court shall stand rejected automatically.

Signature Not Verified Signed by: SHIVANI SINGH RAJPUT Signing time: 13-10-2023 06:22:29 PM

This order will remain operative subject to compliance of the following conditions by the applicants :-

1. The applicant/s will comply with all the terms and conditions of the bond executed by him;

2. The applicant/s will cooperate in the investigation/trial, as the case may be; 3 . The applicant/s will not indulge themselves in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them/her/him from disclosing such facts to the Court or to the Police Officer, as the case may be; 4 . The applicant/s shall not involve any other offence, in case the applicant/s indulge in any other criminal case the benefit of bail as extended by this Court shall automatically cancelled.

5. The applicant/s will not seek unnecessary adjournments during the trial;

6. The applicant/s will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.

Learned State counsel is directed to send an e-copy of this order to the Station House Officer of the concerned Police Station for information and necessary action.

E- copy of this order be sent to the trial Court concerned for compliance, if possible, by the office of this Court.

Application stands allowed and disposed of. Certified copy as per rules.

Signature Not Verified Signed by: SHIVANI SINGH RAJPUT Signing time: 13-10-2023 06:22:29 PM

(SUNITA YADAV) JUDGE shivani

Signature Not Verified Signed by: SHIVANI SINGH RAJPUT Signing time: 13-10-2023 06:22:29 PM