[Cites 6, Cited by 0]
Madhya Pradesh High Court
Prosecutrix vs The State Of Madhya Pradesh on 30 January, 2026
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2026:MPHC-GWL:3394
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 50649 of 2025
PROSECUTRIX
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Neeraj Dhamaniya - Advocate for petitioner.
Shri Brijesh Kumar Tyagi - Public Prosecutor for respondent/State.
Reserved on : 28.01.2026
Pronounced on : 30.01.2026
ORDER
The present petition under Section 226 of the Constitution of India has
been filed by the petitioner seeking transfer of investigation in crime
No.558/2025 registered at Police Station Kotwali District Guna (M.P. ) for
offence punishable under Sections 79, 351(3) of BNS and Section 67(A) of
I.T. Act to other credible agency or higher police authorities.
Learned counsel for the petitioner submits that subsequent to the
registration of the FIR, Respondent No. 3 filed an application for anticipatory
bail before the learned Trial Court at Guna, which came to be dismissed on
merits after due consideration of the gravity of the offences and the material
available on record. Being aggrieved by the said order, Respondent No. 3
preferred an application before this Hon'ble Court by filing MCRC No.
53596/2025 seeking anticipatory bail, which was also dismissed vide order
dated 21.11.2025, thereby affirming the findings recorded by the learned
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Trial Court. The said respondent No. 3 has not assailed it before the Hon'ble
Supreme Court of India. However, to the utter shock and surprise of the
petitioner, the police authorities, particularly Respondent No. 2, in
connivance with Respondent No. 3, have acted in a wholly illegal and
arbitrary manner by exempting Respondent No. 3 from arrest, effective
investigation, and prosecution, despite rejection of her anticipatory bail
application. The police have illegally extended protection from arrest by
issuing a notice under Section 41A of the Code of Criminal Procedure,
thereby granting de facto bail to the accused without any authority of law.
Such conduct clearly amounts to shielding the accused, frustrating the course
of justice, and derailing a fair investigation. In view of the aforesaid
circumstances, the petitioner has been constrained to approach this Court
seeking transfer of the investigation to an independent and impartial agency
to ensure a fair, transparent, and unbiased investigation.
On the other hand, learned counsel for the State submits that the
present petition has been rendered infructuous, inasmuch as, pursuant to
issuance of notice under Section 41A of the Cr.P.C. to respondent No. 3, the
investigation has already been completed and a charge-sheet has since been
filed before the competent Court. In compliance with the order dated
22.01.2026, respondent No. 2 has furnished his explanation, wherein it is
stated that the maximum punishment prescribed under Section 79 of the
Bharatiya Nyaya Sanhita (BNS) is three years, under Section 351(3) of BNS
is seven years, and under Section 67(A) of the Information Technology Act
is up to five years.
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It is further averred that, in view of the law laid down by the Hon'ble
Supreme Court in Arnesh Kumar vs. State of Bihar, reported in (2014) 8
SCC 273, and also in light of Circular No.
कमांक/अअ व/ विध/1/ व वध/121/14/1021 issued by the Police Headquarters
(Crime Investigation Department), State of Madhya Pradesh, containing
directions to police officials regarding arrest in offences punishable up to
seven years, a notice under Section 41A of Cr.P.C. / Section 35(3) of BNSS
was duly served upon the accused Smt. Gagan @ Gagan Kapoor.
It is further averred that when the charge-sheet was filed before the
learned Magistrate on 26.12.2025, the bail application of accused Smt.
Gagan @ Gagan Kapoor was rejected and she was remanded to judicial
custody. Thereafter, the accused preferred a regular bail application before
the learned Additional Sessions Judge, District Guna, which was allowed
vide order dated 29.12.2025, and she was released on bail upon furnishing a
bail bond in the sum of Rs.25,000/-. Although the anticipatory bail
application of accused Smt. Gagan @ Gagan Kapoor had earlier been
rejected by this Hon'ble Court vide order dated 21.11.2025 passed in MCRC
No. 53596/2025, however, since the offences alleged in the FIR are
punishable with a maximum sentence of seven years, the answering
respondent No. 2, strictly in consonance with the law declared by the
Hon'ble Apex Court and the circular dated 08.12.2014 issued by PHQ (CID),
rightly issued notice under Section 41A of Cr.P.C./Section 35(3) of BNSS to
the accused.
Heard counsel for the parties and perused the record.
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The conduct of respondent No.2 in the present matter reflects a
disturbing and alarming disregard for the rule of law, the authority of the
Court, and the basic canons of fair investigation. Despite rejection of
anticipatory bail of respondent No.3 by the learned Trial Court as well as by
this Court, the investigating agency deliberately refrained from arresting the
accused and instead issued a notice under Section 41A of the Cr.P.C.,
thereby virtually granting protection from arrest to the accused and
frustrating the spirit of the judicial orders. The explanation furnished by
respondent No.2 seeks to justify such conduct on the basis of the judgments
of the Hon'ble Supreme Court and the circular issued by the Police
Headquarters. This explanation, however, is wholly unsatisfactory and
unacceptable.
Where the competent courts have already declined anticipatory bail
after considering the gravity of the allegations and material on record, the
investigating agency is not expected to nullify the effect of such judicial
orders by resorting to Section 41A of the Cr.P.C. mechanically. The conduct
of respondent No.2 in issuing notice under Section 41A after rejection of
anticipatory bail, without recording any compelling reasons justifying such
deviation, reflects a blatant disregard for judicial orders and raises a serious
apprehension of favoritism and extraneous influence.
The subsequent filing of the charge-sheet and the fact that the accused
was later remanded to custody and granted regular bail do not wash away the
illegality committed at the stage of investigation. An act which is illegal at its
inception cannot be validated by subsequent events. The conduct of
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respondent No.2, as borne out from the record, prima facie indicates
deliberate misuse of authority, dereliction of duty and conduct unbecoming
of a police officer, which has the effect of undermining public confidence in
the criminal justice system.
This Court cannot remain a silent spectator to such acts. Maintenance
of discipline, integrity and accountability in the police force is essential for
preservation of the rule of law. When a police officer acts in a manner which
appears to defeat the orders of the Court and shield an accused, the matter
assumes grave seriousness and warrants immediate corrective and
disciplinary action.
Accordingly, this Court directs the Competent Authority to forthwith
initiate departmental disciplinary proceedings against respondent No.2 in
accordance with law for his aforesaid conduct. The Competent Authority
shall also place respondent No.2 under suspension with immediate effect
pending conclusion of the departmental inquiry, so as to ensure a fair, free
and uninfluenced inquiry.
It is further directed that the disciplinary authority shall appoint an
officer not below the rank of Superintendent of Police as the Inquiry Officer
to conduct the inquiry and shall ensure that the proceedings are concluded in
a time bound manner. A status report regarding compliance of this order and
progress of the inquiry shall be placed before this Court within four weeks
from the date of receipt of certified copy of this order.
With the aforesaid directions, the petition stands disposed of.
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(MILIND RAMESH PHADKE)
JUDGE
ojha
