IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL ON THE 3^rd OF MARCH, 2022 MISC. CRIMINAL CASE No. 10974 of 2022 Between:-

1. OMPRAKASH DWIVEDI S/O SHRI BABU PRASAD DWIVEDI , AGED ABOUT 58 YEARS, OCCUPATION: FARMER VILLAGE KHADEHI POLICE STATION SARVAI DISTRICT CHHATARPUR (MADHYA PRADESH)

2. SHIVAM DWIVEDI S/O SHRI OMPRAKASH DWIVEDI , AGED ABOUT 23 YEARS, OCCUPATION: FARMER RO VILLAGE KHADEHI POLICE STATION SARVAI DISTRICT CHHATARPUR M.P. (MADHYA PRADESH)

3. VIJAY KUMAR S/O SHRI SHIVKUMAR DWIVEDI , AGED ABOUT 34 YEARS, OCCUPATION: FARMER RO VILLAGE KHADEHI POLICE STATION SARVAI DISTRICT CHHATARPUR M.P. (MADHYA PRADESH)

.....APPLICANT (BY SHRI SUMANTA KUMAR BHATTACHARYA, ADVOCATE)

AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION SARVAI CHHATARPUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI YOGENDRA DAS YADAV, GOVERNMENT ADVOCATE)

This application coming on for admission this day, the court passed the following:

ORDER

This is first application under Section 438 of the Cr.P.C. for grant of anticipatory bail who are apprehending their arrest in connection with case Crime No.07/2022 registered at Police Station Sarvai, District Chhatarpur (M.P.) for offences punishable under Sections 294, 323, 452 and 34 of I.P.C.

It is submitted that a Civil dispute in regard to movement on medh of field is converted into a criminal case. Except for Section 452, all other offences are bailable.

Signature Not SAN Verified It is submitted that though Police is bound to issue notice under Section 41-

Digitally signed by APARNA TIWARI A of Cr.P.C. in the light of law laid down by Supreme Court in case of Arnesh Date: 2022.03.03 Kumar versus State of Bihar & Another (2014) 8 SCC 273 but no notices have been issued. Applicants are willing to co-operate with the I.O. and no useful purpose is going to be served by taking them in custody.

Learned Government Advocate is in agreement that no notice under Section

41-A is issued to the applicants till now, police authorities have not issued notice under Section 41-A Cr.P.C. in terms of the requirement of law laid down in the case of Arnesh Kumar (supra).

After issuance of notice under Section 41-A of Cr.P.C., applicants have not been arrested and charge-sheet has been filed, therefore, it is evident that Investigating Officer has no intention of arresting the applicants, and therefore, this case can be disposed of in the light of law laid down in the judgment of Supreme Court in case of Satender Kumar Antil Vs. Central Bureau of Investigation and Others in Special Leave to Appeal (Criminal) No.5191/2021 decided on 7.10.2021 directed the applicant to appear before the trial Court upon filing of the charge-sheet and to move application for bail and the trial Court shall consider such application in terms of the direction issued by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation (supra).

On going through the judgment passed by the Supreme Court in the case of Satender Kumar Antil versus Central Bureau of Investigation (supra), it is apparent that the applicant has been charged for the offence punishable with imprisonment of seven years or less not falling in category B&D. It is held that if applicant is not arrested during investigation and has cooperated throughout in the investigation including appearing before the Investigating Officer whenever called then after filing of charge sheet/complaint, following courses should be adopted, namely, (a) ordinary summons at the first instance/including permitting appearance through lawyer; (b) if such an accused does not appear despite service of summons then bailable warrant for physical appearance may be issued; (c) Non- bailable warrant on failure to appear despite issuance of bailable warrant; (d) non- bailable warrant may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of accused, if such an application is moved on behalf of the applicant before execution of t