THE HIGH COURT OF MADHYA PRADESH
(Bhura Rawat Vs. State of M.P. )
Gwalior, Dated 19/6/19
Shri Jitendra Tyagi, Advocate counsel for the petitioner.
Ms. Upendri Singh, Panel Lawyer for the respondent/State.
Shri Harish Sharma, Advocate for the complainant.
Case-diary is perused.
Learned counsel for the rival parties are heard.
Petitioner has filed this first application u/S. 438 SectionCr.P.C. for
grant of anticipatory bail.
Petitioner apprehends his arrest in connection with offence
punishable u/S. 354 and 506 of SectionIPC registered as Crime No.71/2019,
by Police Station Goraghat, District Datia.
Learned Public Prosecutor for the State opposed the application
and prayed for its rejection by contending that on the basis of the
allegations and the material available on record, no case for grant of
anticipatory bail is made out.
Counsel for the petitioner has not filed any proof in relation to
civil dispute pending between the parties.
Considering the allegations contained in the statement of
prosecutrix aged 28 years under Section 161 of Cr.P.C. same reveals
that the allegation of outraging the modesty has been made.
Investigation in the matter is pending.
In view of the above, this Court declines the prayer of
anticipatory bail to the petitioner.
However, looking to the fact that Sec. 354 SectionIPC does not
prescribe sentence of more than 7 years, therefore in view of the
principles laid down by the Supreme Court in the case of Arnesh
Kumar Vs. State of Bihar (2014) 8 SCC 273, it is directed that in
offences involving punishment upto seven years imprisonment the
police may resort to the extreme step of arrest only when the same is
necessary and the petitioner does not cooperate in the investigation.
The petitioner should first be summoned to cooperate in the
investigation. If the petitioner 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
7.1 From a plain reading of the provision u/S.41 SectionCr.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 sub-
clauses (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 vitalised. 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 the Magistrate as aforesaid.”
In view of the above the present petition stands disposed of with
(i) that, the police may resort to the extreme step of arrest only
when the same is necessary and the petitioner fails to cooperate
4 in the investigation.
(ii) that, the petitioner should first be summoned to cooperate in
the investigation. If the petitioner cooperates in the
investigation then the occasion of his arrest should not arise.
A copy of this order be sent to the trial court for necessary
C.c.as per rules.
Digitally signed by ANIL