MP HC | Police may resort to the extreme step of arrest only in situations where accused fails to cooperate in the investigation

Madhya Pradesh High Court: Rajeev Kumar Shrivastava, J., allowed the anticipatory bail application of the accused-applicant in connection with the FIR registered for offence punishable under Sections 420 and 34 of the Penal Code, 1860.

The applicant has an apprehension of his arrest resultant of the FIR bearing No. 131/2019 for the offence punishable under the aforementioned sections of the IPC, hence this application.

Counsel representing the applicant, Rajendra Singh Parmar has contended that the applicant has been falsely framed as he has not committed any offence. The applicant’s hard earned reputation would take a beating if he is arrested. The applicant has expressed his willingness to abide by any condition that may be imposed by the Court in the present matter. The counsel has relied on the case titled Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 while pleading for grant of bail to the applicant.

Counsel for the respondent, B.S. Gour vehemently objected to the application and prayed for its rejection.

After careful perusal of the facts, circumstances and arguments advanced, the Court found the above-stated case to be extremely relevant and relied on the same while delivering its Judgment. Relevant paragraphs from Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 have been reproduced below-

“7.1. From a plain reading of the provision under Section 41 CrPC, 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 CrPC 9. Another provision i.e. Section 41-A CrPC 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) CrPC, 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 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.”

In view of the above, the Court has allowed the present anticipatory bail application giving the following directions-

“(i) that, the police may resort to the extreme step of arrest only when the 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 that applicant cooperates in the investigation then the occasion of his arrest should not arise.”

[Rajendra Singh Parmar v. State of Madhya Pradesh, 2020 SCC OnLine MP 1834, decided on 31-08-2020]

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