THE HIGH COURT OF MADHYA PRADESH
(Ram Dayal Vs. State of M.P.)
Shri A.R.Shivhare, Advocate for the petitioner.
Shri R.K.Awasthi, Public Prosecutor for the State.
Case-diary is perused.
Learned counsel for the State is heard.
This is first application u/S. 438 Cr.P.C. for grant of
anticipatory bail by the petitioner.
Petitioner apprehends his arrest in connection with offences
punishable u/Ss. 354, 323, 506 IPC registered as Crime No.
471/18, by Police Station Phoop, District Bhind (M.P.).
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.
The petitioner is apprehending his arrest in respect of the
aforesaid offences where he is alleged with sexual assault against
prosecutrix aged about 25 years. Statement of the prosecutrix u/S.
164 Cr.P.C. is implicative in nature qua the petitioner.
Learned counsel for petitioner submits that FIR was lodged
after 4 days of the incident.
Looking to the social constraint of woman to disclose
incident of this nature, delay in lodging report is understandable.
After hearing learned counsel for the petitioner and looking
to the gravity of the offence, this court does not see any ground to
allow the present bail application. Consequently, no case is made
out for grant of anticipatory bail.
However, looking to the fact that Sec. 354 IPC 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
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 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
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 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
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 DHANANJAYA
DN: cIN, oHIGH COURT OF M.P.
BENCH GWALIOR, ouP. S.,
Date: 2019.01.22 15:42:56 +05’30’