In offences involving punishment up to seven years imprisonment, the police may resort to arrest only when necessary and the accused fails to cooperate in the investigation. The police should issue a notice directing the accused to appear before them before resorting to arrest.

JUDGMENT

1. Learned counsel for the rival parties are heard.

2. This is first application under section 438 of the Code of Criminal Procedure.

3. Applicants apprehend arrest in connection with Crime No. 294/2019 registered at Police Station Civil Lines, District Datia for the offence punishable under Section 406, 506, 120-B of the IPC.

4. Allegations against the applicants, in short, are that the applicants have committed breach of trust and also threatened the complainant to kill. On the basis of aforesaid, crime has been registered.

5. Learned counsel for the applicants submits that applicants have been falsely implicated. The offence under Section 406 of IPC is bailable in nature and maximum prescribed punishment is three years. There has been inordinate delay in lodging an FIR. The present dispute is civil in nature which has been given a shape of criminal dispute. The applicants are permanent resident of District Datia and there are no chances of their absconding or tampering with the prosecution witnesses. The applicants are ready to abide by all the terms and conditions which may be imposed by this Court. On these grounds, applicants pray for grant of anticipatory bail.

6. On the other hand, learned Public Prosecutor opposed the application and prayed for its rejection by contending that on the basis of the allegations and material available on record, no case for grant of bail is made out.

7. From perusal of the order of the lower Court, prima facie offences as alleged above are made out and therefore, no case for bail to the applicant is made out.

8. However, looking to the fact that since the offence in question attracts punishment less than 7 years and 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 up to 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.

8. For ready reference and convenience the guidelines laid down by the Supreme Court in the case of Arnesh (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 inthe 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