High Court
Legal Reasoning
911-aba-1357-2024.odt(4)extracting huge amounts of money from the truck and goods owners.They were asking truck drivers or owners to pay the money in theiraccount numbers to gain confidence that they were the real GSTofficers. However, after the investigation was done, it transpired thatthe bank accounts to which the amount was transferred were fake.The learned APP also submitted that there were two groups workingon the same highway. One was working in the State of Maharashtra,and other was working in the State of Madhya Pradesh. They had aspecific modus operandi to stop the vehicles at these two ends, andunder threat, they were extracting the money from the truck ownersor the drivers. The prosecution is afraid of big fraud played with thegovernment. Considering the nature of the offence, prima facie, itcan be said that the arrest of the applicant is essential for the reasonsmentioned in Section 41 of the Criminal Procedure Code. He wouldsubmit that the ratio laid down in Satender Kumar (supra) or ArneshKumar (supra) does not apply to this case. No accused can claim thathe must be served with notice under Section 41A of the CriminalProcedure Code as a matter of right. The guidelines issued by theHon’ble Supreme Court in the case of Satender Kumar (supra) arefollowed. Based upon the allegations and material collected in thecrime, the investigation officer is justifiable to say that the arrest ofthe applicant is essential. He argued that the applicant is the co-accused in the crime. Unless he has been interrogated in police 911-aba-1357-2024.odt(5)custody, it would be difficult for the investigation officer to collectincriminating material against him. If anticipatory bail is granted, theprosecution may not be able to convict him for want of cogent andreliable evidence. The offence is committed intellectually. Theapplicant would not support the prosecution unless he is arrested. Themandate of law laid down by the Hon’ble Supreme Court in the caseof Arnesh Kumar (supra) does not apply to this case, as has beenargued by the learned counsel for the applicant. The accused of sucha serious crime has no right to claim anticipatory bail and noticeunder Section 41A of the Criminal Procedure Code. He prayed todismiss the application.6.Perused the charge sheet placed on record andconsidered the arguments advanced by the learned counsel for theapplicant. The first question is to be answered whether,r in each casea notice under Section 41A of the Criminal Procedure Code ismandatory.7.Section 41 of the Criminal Procedure Code provides fortime and situation when the police may arrest the accused without awarrant. The first condition is that the offence should be cognizable.Second would be the term of the conviction with imprisonment for aterm which may be less than seven years or which may extend toseven years or with fine. Further, for such an arrest, the police officerhas reason to believe on the basis of such complaint, information, or 911-aba-1357-2024.odt(6)suspicion that such person has committed the said offence. The policehave to satisfy that such arrest is necessary to prevent such personfrom committing any further offence or for proper investigation of theoffence; or to prevent such person from causing the evidence of theoffence to disappear or tampering with such evidence in any manner;or to prevent such person from making any inducement, threat orpromise to any person acquainted with the facts of the case so as todissuade him from disclosing such facts to the Court or to the policeofficer; or as unless such person is arrested, his presence in the Courtwhenever required cannot be ensured and the police officer shallrecord while making such arrest, his reason in writing. Further, thepolice officer opines that the arrest of the person is not required, hehas to record the reasons for the same. 8.Section 41A of the Criminal Procedure Code reads thus :“41A. Notice of appearance before police officer - (1) [The policeofficer shall]in all cases where the arrest of a person is notrequired under the provisions of sub-section (1) of Section 41,issue a notice directing the person against whom a reasonablecomplaint has been made, or credible information has beenreceived, or a reasonable suspicion exists that he has committed acognisable offence, to appear before him or at such other place asmay be specified in the notice.9.The Hon’ble Supreme Court in Satender Kumar (supra)has reproduced para 7.1 of Arnesh Kumar (supra) on the scope ofobjection of Section 41 and 41-A, which reads thus : 911-aba-1357-2024.odt(7)“7.1. From a plain reading of the aforesaid provision, it is evidentthat a person accused of an offence punishable with imprisonmentfor a term which may be less than seven years or which may extendto seven years with or without fine, cannot be arrested by thepolice officer only on his satisfaction that such person hadcommitted the offence punishable as aforesaid. A police officerbefore arrest, in such cases has to be further satisfied that sucharrest is necessary to prevent such person from committing anyfurther offence; or for proper investigation of the case; or toprevent the accused from causing the evidence of the offence todisappear; or tampering with such evidence in any manner; or toprevent such person from making any inducement, threat orpromise to a witness so as to dissuade him from disclosing suchfacts to the Ccourt or the police officer; or unless such accusedperson is arrested, his presence in the Ccourt whenever requiredcannot be ensured. These are the conclusions, which one mayreach based on facts.7.2.The law mandates the police officer to state the facts andrecord the reasons in writing which led him to come to aconclusion covered by any of the provisions aforesaid, whilemaking such arrest. The law further requires the police officers torecord the reasons in writing for not making the arrest.7.3. In pith and core, the police officer before arrest must put aquestion to himself, why arrest? Is it really required? What purposeit will serve? What object it will achieve? It is only after thesequestions are addressed and one or the other conditions asenumerated above is satisfied, the power of arrest needs to beexercised. In fine, before arrest first the police officers should havereason to believe on the basis of information and material that theaccused has committed theoffence. Apart from this, the police officer has to be satisfiedfurther that the arrest is necessary for one or the more purposes 911-aba-1357-2024.odt(8)envisaged by sub-clauses (a) to (e) of clause (1) of Section 41CrPC.”10.In the concluding part of Satender Kumar (supra), theHon’ble Supreme Court issued certain directions. It has beenreiterated that the investigating agencies and officers are duty-boundto comply with the mandate of Section 41 and 41A of the Code anddirections issued by this Court in Arnesh Kumar (supra). Anydereliction on their part has to be brought to the notice of the higherauthorities by the Court, followed by appropriate action. 11.In paragraph No. 21 of Satender Kumar (supra), theHon’ble Supreme Court observed that Section 41 under Chapter V ofthe Code deals with the arrest of persons. Even for a cognizableoffense, an arrest is not mandatory as can be seen from the mandateof this provision. If the officer is satisfied that a person has committeda cognizable offense, punishable with imprisonment for a term whichmay be less than seven years or which may extend to the said period,with or without fine, an arrest could only follow when he is satisfiedthat there is a reason to believe or suspect, that the said person hascommitted an offense, and there is a necessity for an arrest. Suchnecessity is drawn to prevent the committing of any further offense,for a proper investigation, and to prevent him/her from eitherdisappearing or tampering with the evidence. He/she can also bearrested to prevent such person from making any inducement, threat, 911-aba-1357-2024.odt(9)or promise to any person according to the facts, so as to dissuade himfrom disclosing said facts either to the Court or to the police officer.One more ground on which an arrest may be necessary is whenhis/her presence is required after arrest for production before theCourt and the same cannot be assured.12.In para 22, it has been further observed that thisprovision mandates the police officer to record his reasons in writingwhile making the arrest. Thus, a police officer is duty-bound to recordthe reasons for arrest in writing. Similarly, the police officer shallrecord reasons when he/she chooses not to arrest. There is norequirement of the aforesaid procedure when the offense alleged ismore than seven years, among other reasons. In para 23, it has beenobserved that the consequence of non-compliance with Section 41shall certainly inure to the benefit of the person suspected of theoffense. Resultantly, while considering the application forenlargement on bail, courts will have to satisfy themselves on the duecompliance of this provision. Any non-compliance would entitle theaccused to a grant of bail.13.Reading Section 41A read with Section 41 of the CriminalProcedure Code and the law laid down by the Hon’ble Supreme Courtin the above cases, it is clear that for every such offence mentioned inSection 41 of the Criminal Procedure Code, a notice of appearance asprovided under Section 41A of the Criminal Procedure Code is not 911-aba-1357-2024.odt(10)essential, unless the investigation officer is satisfied that the arrest ofaccused is not required as contemplated under Section 41 of theCriminal Procedure Code.14.There are two types of bail. Pre-arrest, and post-arrestbail. The law laid down by the Hon’ble Supreme Court in the case ofSatender Kumar (supra), as discussed above, is very specific that it isthe duty of the police officer who has reason to believe that thecognizable offence is committed which is punishable for not less thanseven years or may extend to seven years to record in writing whilemaking the arrest. The arrest is a process or act by the police to takea person in the custody. That time, the police has to mention thereasons as mentioned in Section 41 of the Criminal Procedure Code.The other conditions the police officer has to follow are that he mustsatisfy that the said arrest is necessary to prevent the applicant for thepurpose and the reasons mentioned in Section 41 (1) of the CriminalProcedure Code. Herein the case, the applicant has yet to bearrested. He is asking for pre-arrest bail. So, the Court is of the viewthat the Stage to write the reason for arrest is yet to come.Otherwise, it has also been argued that his arrest is necessary forproper investigation of the offence and preventing the applicant fromcausing the evidence of the offence to disappear or tampering withsuch evidence. The learned APP has specifically argued that afterrevealing the name of the applicant in the crime, they visited his 911-aba-1357-2024.odt(11)home a few times, but he was not found. Therefore, an inference maybe drawn that he has avoided his arrest. 15.The charge sheet is filed against the applicant, showinghim absconding. The police have not yet disclosed what is the directmaterial against the applicant, but other concerned material hasshown the nexus of the applicant with the crime. The offence isapparently serious. The offence was committed with the help of policepersonnel and by using government police vehicles. It is a matter ofsafety of the businessman and the common man. The Court isagreeable with the arguments of the learned APP for the State thatthere are reasons to believe that the arrest of the applicant isrequired. Hence, notice under Section 41A may be dispensed with inthis case. The learned APP has correctly expressed an apprehensionthat if no material would be recovered against the applicant, he maytake advantage during the trial that there is nothing against him.Therefore, he may not be tried. The collection of evidence is the firststage of the investigation. The investigation officer is appointed tocollect the evidence, known, unknown or hidden. After collecting theevidence, he has to submit the report under Section 173 of theCriminal Procedure Code for proper adjudication, testing therelevance of the evidence and proving the involvement of the accused.It seems that the learned counsel for the applicant has tried to takebenefit of the ratio laid down by the Hon’ble Supreme Court in the 911-aba-1357-2024.odt(12)case of Satender Kumar (supra) and Arnesh Kumar (supra), which isnot applicable to the case at hand. Considering the nature of theoffence, and how it has been committed is discovered, the Court is ofthe view that this is not a fit case to exercise discretion under Section438 of the Criminal Procedure Code. Hence, the application standsdismissed. (S.G. MEHARE, J.)Mujaheed//
Arguments
911-aba-1357-2024.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADANTICIPATORY BAIL APPLICATION NO. 1357 OF 2024Anand s/o Sukhlal PardeshiAge : 44 years, Occ : Service,R/o. H.No. 90/1, Ward 15,Sendhwa, Barwani...ApplicantVERSUSThe State Of MaharashtraThrough Police Station OfficerAzadnagar Police Station,Tq. and Dist. Dhule...Respondent...Advocate for Applicant : Mr. Chaudhari Chetan Barku & Mr. Akash R.SharmaAPP for Respondent/State : Mr. A.A.A. Khan... CORAM : S.G. MEHARE, J. DATED : SEPTEMBER 25, 2024 ORDER :-1. Heard learned counsel for the applicant and the learnedAPP for the State.2. The applicant seeks pre-arrest bail in Crime No.02 of2024, registered with Azadnagar Police Station, District Dhule, forthe offences punishable under Sections 419, 420, 341, 170, 201,120(B) and 34 of the Indian Penal Code.3. The prosecution case, in brief is that a few peopleimpersonating themselves as officers of the GST were stopping thetrucks on the highway. There were two teams. One was working in 911-aba-1357-2024.odt(2)Maharashtra, and another was in Madhya Pradesh. They were askingfor the GST receipts, and when the driver could not show them theGST receipts, they were asked them to pay the penalty. Thereafter,they were offering for settlement to the drivers of the vehicles. Theywere deducing money from the drivers by contacting the owners ofthe machinery or goods transported. If the drivers were paying, theywere allowing them to transport the goods. It was also their practiceto make the calls to the other higher officers who were members ofthe gang. Thereafter, all the persons were sharing such looted money.For committing offence the accused were using police vehicles. Onepolice constable, the driver, and one ASI are the accused in this case.The accounts to which money was transferred were fake. One of theco-accused who was serving at the bank opened those bank accountsin the name of the servants to get the government scheme. However,another co-accused, who was the brother of the accused working inthe bank, was operating those accounts for committing the offence asalleged then. The investigation was done thoroughly. The other co-accused were arrested. This applicant’s name came forward as amember of the gang member extracting the money in the State ofMadhya Pradesh. The prosecution case is that the police went to hishome many times, but he was not present.4.Learned counsel for the applicant has vehemently arguedthat the offences for which the crime is registered are punishable to 911-aba-1357-2024.odt(3)the extent of seven years. Hence, the police must comply with Section41A of the Criminal Procedure Code and follow the ratio laid down bythe Hon’ble Supreme Court in the case of Satender Kumar Antil Vs.Central Bureau of Investigation and Another, 2022 LiveLaw (SC) 577and Arnesh Kumar Vs. State of Bihar and Another, (2014) 8 SCR 128.He submits that there is absolutely no material against the applicant.He cannot be arrested for the crime only on the recovery underSection 27 of the Indian Evidence Act and the statement of the co-accused. He has taken the Court through the record. The charge sheetagainst the applicant is filed under Section 299 of the CriminalProcedure Code. Learned counsel for the applicant further argued thatthis Court may grant interim protection and direct the applicant toattend the police station. He is ready to cooperate with theinvestigation. He also argued that other material collected by theprosecution doe not establish the nexus of the applicant with the saidcrime. He is in private service. He has an apprehension of arrest.Hence, he may be granted anticipatory bail.5.Learned APP would submit that the prosecution hassufficient material to believe that the arrest of the applicant isessential because the evidence came forward against the applicantshowing his active involvement in the crime. There were thousandsof calls inter-se between all the accused, including the applicant. Theoffence is serious. They were impersonating them as GST officers and