Harishankar Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 17885 MP

                                                             1
                                IN THE HIGH COURT OF MADHYA PRADESH
                                             AT GWALIOR
                                                       BEFORE
                                          HON'BLE SMT. JUSTICE SUNITA YADAV
                                               ON THE 27 th OF OCTOBER, 2023
                                          MISC. CRIMINAL CASE No. 47173 of 2023

                           BETWEEN:-
                           1.    HARISHANKAR SHARMA S/O SHRI POHAP SINGH
                                 SHARMA, AGED ABOUT 72 YEARS

                           2.    RAMNIWAS SHARMA S/O SHRI RAMSHARAN
                                 SHARMA, AGED ABOUT 35 YEARS, BOTH R/O
                                 PADRIYA, P.S. MOW THASIL GOHAD, DISTRICT
                                 BHIND (MADHYA PRADESH)

                                                                                         .....APPLICANTS
                           (BY SHRI PRADEEP KATARE - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH THROUGH POLICE
                           STATION MOW, DISTRICT BHIND (MADHYA PRADESH)

                                                                                        .....RESPONDENT
                           (BY SHRI RAJENDRA SINGH YADAV - PUBLIC PROSECUTOR)

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

This is first application filed by the applicants under Section 438 of the Cr.P.C. for grant of anticipatory bail relating to FIR No.222 of 2023 registered at Police Station Mow, District Bhind (M.P.) for the offence under Sections 294, 323, 308 & 34 of IPC.

Prosecution story, in short is that due to the old animosity in respect to land, the applicants alongwith other co-accused persons inflicted injury by means of lathi and fired gunshot upon the complainant. Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 28-10-2023 11:26:38 AM

Learned counsel for the applicants argued that the applicants are innocent and have been falsely implicated. It is further argued that as per prosecution story when co-accused persons have inflicted injuries to complainant and other injured persons, applicant no.1 - Harishankar Sharma fired gunshot, however, no injury is caused to anyone. It is further argued that just to implicate the applicants, the false allegations are levelled against them. It is further argued that a cross case has also been registered on the report of accused persons against complainant party bearing Crime No.224/2023. Further submission is that maximum punishment prescribed for the alleged offence is less than seven years and, therefore, in the light of case of Arnesh Kumar vs. State of Bihar

reported in (2014) 8 SCR 128 as well as the guidelines issued by the Main Registry at Jabalpur, the police officers shall not arrest the applicants unnecessarily and the magistrate shall not authorize their detention casually and mechanically. Applicants are ready to co-operate in the investigation. Under these circumstances, the applicants are entitled to get benefit of anticipatory bail and prays for grant of anticipatory bail to the applicants.

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

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

In view of facts and circumstances of the case, this Court finds it appropriate to grant anticipatory bail to the applicants in the light of the case of Arnesh Kumar (supra) looking to the fact that since the offence in question attracts punishment less than 7 years and therefore, in view of the principles laid down by the Supreme Court in the case of Arnesh Kumar (supra), it is

Signature Not Verified directed that in offences involving punishment up to seven years imprisonment Signed by: VIPIN KUMAR AGRAHARI Signing time: 28-10-2023 11:26:38 AM

the court may resort to the extreme step of arrest only when the same is necessary and the applicant 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 Vs. State of Bihar [(2014) 8 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 Signature Not Verified law further requires the police officers to record the Signed by: VIPIN KUMAR AGRAHARI Signing time: 28-10-2023 11:26:38 AM

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 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 Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 28-10-2023 11:26:38 AM

bail. In the event of arrest, the applicants are directed to be released on bail on furnishing a surety bond by each of the applicant in the sum of Rs.50,000/- (One Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the trial court.

The applicants shall further abide by other conditions enumerated under Section 438 (2) of the Code of Criminal Procedure and shall cooperate in the investigation, otherwise this bail order shall automatically stand cancelled.

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

(SUNITA YADAV) JUDGE vpn

Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 28-10-2023 11:26:38 AM