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Bhoora Rawat vs The State Of Madhya Pradesh on 19 June, 2019

1 M.Cr.C.No.23530/19

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.

2 M.Cr.C.No.23530/19

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

enumerated below:-

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
3 M.Cr.C.No.23530/19

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
4 M.Cr.C.No.23530/19

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

following directions:-

(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

compliance.

C.c.as per rules.

(Sheel Nagu)
Judge
5 M.Cr.C.No.23530/19

Anil*

Digitally signed by ANIL
KUMAR CHAURASIYA
Date: 2019.06.20
07:08:07 +05’30’

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