Nitin Sharma vs The State Of Madhya Pradesh
2024 Latest Caselaw 16762 MP

Madhya Pradesh High Court

Nitin Sharma vs The State Of Madhya Pradesh on 25 June, 2024

                                                             1                               CRA-6707-2024
                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                     CRA No. 6707 of 2024

(NITIN SHARMA Vs THE STATE OF MADHYA PRADESH AND OTHERS)

Dated : 25-06-2024 Shri Awdhesh Singh Bhadauria - Advocate for appellant.

Shri Rohit Shrivastava - Panel Lawyer for the State. Shri Shriratan Nigam - Advocate for the complainant.

This first criminal appeal has been filed by the appellant under section 14 (2) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act

being aggrieved with the order dated 29.05.2024 passed by Special Judge (Atrocities), District Gwalior in Case No/Bail Application No.1523/2024, whereby, the application filed by the appellant under section 438 of Cr.P.C has been rejected.

2. Appellant apprehends his arrest in connection with Crime No.60/2024 registered at Police Station Thatipur District Gwalior for commission of offences punishable under Sections 427, 336, 323, 294, 506, 34 of IPC and under Sections 3(1)(n) , 3(1)(/k) and 3(2)(va) of the SC/ST (Prevention of

Atrocities) Act.

3 . The prosecution case against the appellant is that on 03.02.2024, at about 11:50 pm in the night, the appellant along with other co-accused persons were consuming liquor outside the house of complainant . After consuming liquor, the present appellant and other co-accused persons are alleged to have started calling out the tenant lady of the complainant by name and started uttering caste based abuses. When the complainant came out of his house and objected such act of accused person, then they also by abusing him by the name of his caste assaulted him by kicks and fists blows. The present appellant

2 CRA-6707-2024 is alleged to have fired gunshots in air and co-accused Rajendra is alleged to have thrown stones on the house of complainant which resulted in smashing of windowpane of the house.

4. Learned counsel for the appellant, at the outset, limited his prayer that he does not seek grant of anticipatory bail but he seeks that the prosecuting agency be restrained from arresting the present appellant and be directed to grant benefit of Section 41-A of Cr.P.C. in terms of the judgment of the Hon'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar reported in (2014) 8 SCC 273 and Satender Kumar Antil Vs. Central Bureau of Investigation, reported in (2022) 10 SCC 51.

5. Per contra, learned Panel Lawyer for the State opposed the appeal and submitted that the appellant has used firearm in the incident and has also criminal history of as many as 24 cases. Thus, it is not a fit case to restrain the arrest of present appellant by giving benefit of Section 41-A of Cr.P.C.

6. Heard learned counsel for the rival parties.

7 . The appellant in the present case is seeking direction to restrain his arrest and giving benefit of notice in terms of Section 41-A and also relies on the judgment passed by the Hon'ble Supreme Court in the case of Arnesh Kumar (Supra) and Satender Kumar Antil (Supra).

8. The Hon'ble Supreme Court in the case of Arnesh Kumar (Supra) has held as under :

"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

3 CRA-6707-2024 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. Thus, it is clear that in terms of Section 41(1)(b) of Cr.P.C., the police officer cannot arrest a person only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer has to further satisfy himself that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to

4 CRA-6707-2024 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. As held in para 8.2 of the aforesaid judgment, once a person arrested is brought before the Magistrate, the Magistrate is bound to see whether the arrest satisfies the requirement of Section 41 or not. In para 9 of the judgment, it has been held that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time.

10. In case of Satender Kumar Antil (Supra), the Hon'ble Supreme Court has held that the investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code.

11. In view of the aforesaid judgments of the Hon'ble Apex Court read with Section 41 and 41A of Cr.P.C, the Investigation Officer has to apply it's mind as to necessity of arrest of any person/accused of offence punishable with imprisonment upto 7 years.

12. The discretion is cast on the the Investigation Officer in terms and parameters which are required to be considered by the Investigating Officer in terms of Para 7.1 of the judgment in case of Arnesh Kumar (Supra).

13. This Court, therefore, does not deem it proper to issue mandatory direction to police to grant benefit of Section 41-A and thereby to restrain arrest of present appellant.

14. Accordingly, the present criminal appeal is dismissed with a

5 CRA-6707-2024 direction to the police authorities to comply with the direction in Para 7.1 of the judgment passed in the case of Arnesh Kumar (Supra) and arrive at satisfaction in terms thereof. The said satisfaction shall be subject to the approval/scrutiny by the concerned Court.

(VIVEK JAIN) JUDGE

Aman