The main legal point established is that the police should resort to arrest only when necessary and the accused fails to cooperate in the investigation, as per the principle laid down in arnesh Kumar's case.

JUDGMENT

Satyendra Kumar Singh, J. - This is the first application filed under section 438 of the Cr.P.C. for grant of anticipatory bail to the applicant, who is apprehending his arrest in connection with Crime No.433/2021 registered at Police Station, Taal District Ratlam for commission of offence punishable under Sections 420 of IPC and Section 339-C of M.P Municipalities act, 1961.

The prosecution story in brief is that applicant along with other co-accused persons developed illegal colony without obtaining statutory permission from the competent authority and sold the piece of land (plot) to the purchaser by suppressing the required information Learned counsel for the applicant submits that applicant has not committed any offence and has not developed any colony. He sold his land to the purchaser without suppressing any required information. Learned counsel for the applicant has further submitted that applicant has not misguided anyone and he was owner of the self land and sold the property. applicant has no criminal antecedents. It is further submitted that in the application filed by the co-accused Raghu under 438 of Cr.P.C, this Court vide order dated 3.1.2022 passed in MCRC.No.59946/2021 has relied on the order passed by the apex Court in the case of arnesh Kumar, (2014)8 SCC 273. The case of the present applicant is similar to the co-accused Raghu. The principle of arnesh Kumar's case is also applicable to the case of present applicant as the offence alleged against him are punishable not more than 7 years of imprisonment. The applicant is ready and willing to cooperate the investigation agency and furnish appropriate surety as may be imposed on him.

Per contra, learned counsel for the respondent State opposes the application and submits that applicant developed colony illegally without obtaining statutory permission from the competent authority and sold about 34 plots to different persons, therefore, he is not entitled for anticipatory bail.

Having considered the rival submissions and also going through the material produced on record, in view of this Court the applicant is not entitled for anticipatory bail. However, looking to the nature of offence, the accused may be kept in custody only if the condition enumerated in Section 41(1)(b)(ii) of Cr.P.C. exists. In arnesh Kumar's case [(2014) 8 SCC 273], the Hon'ble apex Court has held as under:-

"..........the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused......".

Therefore, in view of the observations laid down in the judgment referred above, I deem fit to direct as under :-

(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 the applicant cooperates in the investigation then the occasion of their arrest should not arise.

(iii) That, if the applicant-accused is arrested and he wants to file application under Section 437 of Cr.P.C. for regular bail before lower Court, then he will be produced before the lower Court without any delay.

Lower Court is also directed to consider his bail application as expeditiously as possible, preferably, on the same day.

This petition is disposed off with the aforesaid directions.

C.C. as per rules.