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Madhya Pradesh High Court
Atul Thakur vs The State Of Madhya Pradesh on 5 January, 2026
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 5 th OF JANUARY, 2026
MISC. CRIMINAL CASE No. 60080 of 2025
ATUL THAKUR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ankush Jain - Advocate for applicant.
Ms Anjali Gyanani - Public Prosecutor for respondent/State.
ORDER
The applicant has filed this first application under Section 482 of BNSS/438
of the Code of Criminal Procedure for grant of anticipatory bail.
Applicant apprehends his arrest in connection with Crime No.76/2024
registered at Police Station Cantt, District Guna for the offence punishable under
Section 34(2) of Excise Act.
Learned counsel for the applicant at the outset has submitted that the crime
which has been registered against the applicant mentions of the offence of which
the maximum sentence therein is up to seven years and in the light of the Arnesh
Kumar vs. State of Bihar and another reported in 2014 (8) SCC 273, wherein
directions have been issued to the police authorities not to make unnecessary arrest
in the offences where offences were punishable with imprisonment for a term
which may be less than seven years or which may extend upto seven years whether
with or without fine, the applicant is entitled for enlargement on bail in the event
of his arrest.
It was further argued that where for an offence, the maximum imprisonment
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provided is 7 years or upto 7 years, the accused shall not be arrested by the police
as an ordinary course of action, unless it is under a special statute mandating such
an arrest or if the police finds it expedient to arrest such an accused, then before
effecting any arrest in such case, it is required to record its reasons and then only
the arrest could be made. On the strength of the above arguments as well as the
judgments cited, it was prayed that the present petitioner/applicant deserves to be
enlarged on anticipatory bail in the event of her arrest.
Per contra, learned counsel for the State opposed the prayer of the applicant
submitting that the benefit of the guidelines as laid down by the Hon'ble Apex
Court in the matter of Arnesh Kumar (Supra) should not be granted to him as his
custodial interrogation is necessary to unearth the fact and situation of the case. In
the light of the aforesaid factual matrix, it was prayed that the present bail
application deserves to be dismissed.
After hearing the rival contentions and perusing the case diary, this Court
finds that the offence appears to have been registered against the present applicant
under Section 34(2) of Excise Act, In the case of Arnesh Kumar (supra), it has
been directed by the Apex Court that in offences involving punishment up to
seven years' imprisonment the police 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 (supra) 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
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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 of icer only
on his satisfaction that such person had committed the offence
punishable as aforesaid. A police of icer 6 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 of icer; 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 of icer 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 of icers 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 of Cr.P.C.
9. Another provision i.e. Section 41-A of Cr.P.C. aimed to avoid
unnecessary arrest or threat of 7 arrest looming large on the accused
requires to be vitalized. This provision makes it clear that in a l l cases
where the arrest of a person is not required under Section 41 (1) Cr.P.C.,
the police of icer 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 the Magistrate as
aforesaid."
Looking to the overall facts an circumstances of the case and considering the
principles laid down by the Apex Court in the case of Arnesh Kumar (supra), this
Court is inclined to direct thus:
i) That, the police may resort to the extreme step of arrest only when the
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same is necessary and the applicant fails to cooperate in the investigation.
ii) That, 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.
With the aforesaid directions, the present anticipatory bail application stands
disposed of.
Certified copy as per rules.
(MILIND RAMESH PHADKE)
JUDGE
ojha
