Madhya Pradesh High Court
Smt Aradhna Tiwari vs The State Of Madhya Pradesh on 16 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 16 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 4388 of 2024
BETWEEN:-
1. SMT ARADHNA TIWARI W/O SHRI SANJAY
TIWARI, AGED 40 YEARS, OCCUPATION :
HOUSEWIFE
2. SANJAY TIWARI S/O RADHESHYAM TIWARI,
AGED 46 YEARS, OCCUPATION : KASTHAKARI,
MUDIYAN KA KUA, DATIA DISTRICT DATIA, AT
PRESENT PANDE KA BAG DATIA DISTRICT DATIA
(MADHYA PRADESH)
.....APPLICANTS
(BY SHRI RAJIV BUDHOLIYA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION KOTWALI DISTRICT DATIA (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI ROHIT MISHRA - ADDITIONAL ADVOCATE GENERAL)
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 Crime No. 72 of 2020 registered
at Police Station Kotwali, District Datia (M.P.) for the offence under Sections
420, 506, 34 of IPC.
Learned counsel for the applicants argued that applicants are innocent
and have been falsely implicated. Further submission is that the disputed plot
was purchased by the applicant No.1/accused from one Sudha Dhengula by
registered sale deed dated 23.04.2011. Thereafter, she sold the same plot to
complainant Mahesh Kumari by sale deed dated 13.01.2014. It is further argued
that one Ajay Shrivastav lodged a complaint before the Department of Nazul
alleging that the disputed plot is the Nazul land. However, on account of clerical
mistake, the house number is shown as 130 in place of 116 and the same was
corrected by correction deed dated 29.01.2021 which was registered, thereafter,
the applicant No.1/accused again purchased the same plot from the complainant
by sale deed dated 01.10.2020. Therefore, the question of cheating to
complainant does not arise. Further submission is that the dispute arose on
account of clerical mistake in respect to number of property which has now
been cured. The applicants are having no criminal history and they are the
permanent resident of District Datia (M.P.) and there is no likelihood of their
absconsion or tampering with the prosecution evidence, therefore, he prays for
grant of anticipatory bail to the applicants.
O n the other hand, learned Additional Advocate General 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 applicants in the light of the case of Arnesh Kumar Vs.
State of Bihar [(2014) 8 SCC 273] 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 applicants do not cooperate in the investigation. The
applicants should first be summoned to cooperate in the investigation. If the
applicants cooperate in the investigation then the occasion of their 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 applicants are directed to be released on bail on
furnishing a surety bond by them in the sum of Rs.50,000/- (Rs. Fifty
Thousand Only) each with one solvent surety each 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
AK/-
