Madhya Pradesh High Court
Ashish Kumar vs The State Of Madhya Pradesh on 9 February, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 9 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 5442 of 2024
BETWEEN:-
ASHISH KUMAR S/O SHRI RAM SHANKAR SONI, AGED
29 YEARS, OCCUPATION : PRIVATE JOB, VILLGE
HULAPUR, POST PRATAPPURA, DISTRICT BHIND
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI ALOK KUMAR SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION ATER DISTRICT BHIND (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ROHIT SHRIVASTAVA - PANEL LAWYER)
This application coming on for hearing this day, the court passed the
following:
ORDER
This is first application filed by the applicant under Section 438 of the
Cr.P.C. for grant of anticipatory bail relating to FIR No. 87 of 2023 registered
at Police Station Ater, District Bhind (M.P.) for the offence under Sections 420,
406, 120 (B) of IPC.
Learned counsel for the applicant argued that applicant is innocent and
has been falsely implicated on account of some misunderstanding between the
complainant and the applicant/accused in respect to money transactions. It is
further submitted that the applicant/accused is ready to deposit 25% of
Rs.8,00,000/- before the trial Court allegedly embezzlement by the
applicant/accused to show his bonafide. Further submission is that the
maximum sentence prescribed for the alleged offence is up to 3 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 applicant is ready to co-operate in the
investigation. The applicant is the permanent resident of District Bhind (M.P.)
and there is no likelihood of his absconsion or tampering with the prosecution
evidence, therefore, he prays for grant of anticipatory bail to the applicant.
O n the other hand, learned Panel Lawyer for the respondent/State
vehemently opposed the bail application and prayed for its rejection.
Heard learned counsel for the rival parties and perused the case diary
available on record.
Considering the facts and circumstances of the case, without
commenting upon the merits of the case, this Court finds it appropriate to grant
anticipatory bail to the applicant in the light of the case of Arnesh Kumar
(supra) looking to the fact that since the offence in question attracts
punishment up to 7 years and, therefore, in view of the principles laid down by
the Supreme Court in the case of Arnesh Kumar (supra), it is directed that in
offences involving punishment up to seven years imprisonment 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 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
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 applicant is directed to be released on bail on
furnishing a surety bond by him in the sum of Rs.1,00,000/- (Rs. One Lakh
Only) with one solvent surety in the like amount to the satisfaction of the trial
court.
The applicant is directed to deposit 25% of Rs.8,00,000/- before the trial
Court. The fixed deposit amount shall not be distributed without permission of
this Court.
The applicant 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
AK/-
