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Madhya Pradesh HC held that Guidelines regarding Arrest laid down in SC Case of Arnesh Kumar to be followed, hence Anticipatory Bail Application denied u/s 438 CrPC

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In the case of Shivam Gupta vs The State of M.P. M.Cr.C. No 9951/2020 on 20th March 2020, the allegation against the petitioner is that on 14/02/2020 at 8.00 am, an altercation took place between the complainant, applicant and other co-accused.

The petitioner and co-accused shouted filthy abuses towards the complainant. They also caught hold of his hair and started beating him, after which the complainant ran away inside his house. Furthermore, the applicant and other co-accused persons entered the house and beat him up due to which he received various injuries.

After the crime was registered, the petitioner filed anticipatory bail grant application u/S. 438 Cr.P.C.

Applicant apprehended his arrest in connection with offences punishable u/S 452, 323, 294, 506 and 34 of the IPC registered as Crime No. 69/2020, by Police Station Kotwali District Datia in M.P.

Arguments of the Petitioner

The applicant’s counsel (Shri Pramod Pachori) submitted that the petitioner has falsely been implicated in all the matters, and that except in the offence under Section 452 of the IPC, all other offences are bailable. He pleaded that the injuries inflicted by the petitioner are minor in nature and that there is no likelihood of him absconding if he is granted the benefit of anticipatory bail. He contended that he was ready to abide by all the terms and conditions as may be imposed by this Court.

Arguments of the Respondent

The State’s public prosecutor (Shri Sanjeev Mishra) 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.


Taking into consideration 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 applicant does not cooperate in the investigation.

The applicant should first be summoned to cooperate in the investigation. If the applicant does not cooperate in the investigation, then the event of their arrest should arise.

The guidelines laid down by the Supreme Court in the case of Arnesh Kumar are enumerated below:

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 unless such accused person is arrested, his presence in the court whenever required cannot be ensured, etc.

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.

The police officer before arrest must examine whether the arrest is required, grounds for arrest, purpose served, object achieved, etc.

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 arresting, 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 subclauses (a) to (e) of clause (1) of Section 41 Cr.P.C..

Another provision i.e. Section 41-A Cr.PC aims 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.

Court’s Decision

According to the order given by Judge S.A. Dharmadhikar, after considering the principles laid down by the Apex Court in the case of Arnesh Kumar, the court was inclined to direct 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. Also, 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.

Thus, bail was not granted. is now on Telegram. Follow us for regular legal updates and judgements from the court. Follow us on Google NewsInstagramLinkedInFacebook & Twitter. You can also subscribe for our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

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