Sumit Singh Bhadoriya vs State of Madhya Pradesh

Learned counsel for petitioner after arguing for some time prays for withdrawal of this petition with liberty to cooperate in further investigation which is kept pending against petitioner u/S.173(8) of IPC.

Charge-sheet which is taken on record in respect of Crime No.21/2016, alleges offences punishable u/Ss.393 of IPC r/w 11/13 of MPDVPK Act which provide for maximum penalty of of 7 years R.I.

In view of the decision of Apex Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273 where it is held that any offence which do not attract the punishment for more than 7 years, police may resort to the extreme step of arrest only when the same is necessary and accused does not cooperate in the investigation and therefore if petitioner cooperates, there would be no occasion to arrest him.

The relevant portion of the said decision of the Apex Court is reproduced below for ready reference and convenience.

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 Cr.P.C.

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 above, petition stands disposed of as withdrawn with the 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 petitioner cooperates in the investigation then the occasion of his arrest should not arise.