MCRC/57439/2023 of CHETANBHAI Vs THE STATE OF MADHYA PRADESH on 2 February 2024

ORDER

Heard and perused the case diary.

1. This is first bail application filed by the applicant under Section 438of the Cr.P.C. for grant of anticipatory bail who is apprehending his arrest inrelating to F.I.R. No.54/2023 dated 22.09.2023, registered at Police Station-Crime Branch, District-Indore (M.P.) for the offence under Sections 420, 409,467, 468 & 470 of IPC, 1860.

2. In brief, the prosecution case is that the wife of applicant has receivedamount of Rs.99,00,000/- for procuring cumin seeds. However, she has neithersupplied cumin seeds nor returned the money to the complainant. As perprosecution case, Rs.40,00,000/- was received by the present applicant fromhis wife, the main accused Roopal Mavani. That apart, he has also intimidatedthe complainant for dire consequences, if she tries to recover the amount fromhis wife.

3. Learned Senior counsel for the applicant submits that applicant isinnocent and has falsely been implicated in the present case. The applicant hasnot played any role in the prosecution case, he is only Director of SonalCultivation. The money involved in this case was received by Sonal wife of theapplicant and who is representative of Sonal Cultivation. The only allegationagainst the applicant is to threaten the complainant for dire consequences. Healso submits that ther is no single evidence which depicts the role of applicant inthis case. The applicant is ready to abide all the conditions as may be imposedby this Court. Therefore, he may be enlarged on anticipatory bail.

4 . To bolster his contentions, counsel for the applicant has drawnattention of this Court to the provision of Section 41a of Cr.P.C. that the arrestin every case is not necessary and personal presence of accused can be calledby notice under aforesaid provision of law. Hon'ble Apex as well as High Courtin catena of judgments that the arrest is not necessary in every case. He furtherplaced reliance over the judgment of Hon'ble Apex Court passed in the case ofArnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273, relevant para of the judgment is as under :- "In pith and core, the police office before arrest must put aquestion to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questionsare addressed and one or the other conditions as enumerated above issatisfied, the power of arrest needs to be exercised. In fine, beforearrest first the police officers should have reason to believe on the basisof information and material that the accused has committed theoffence. Apart from this, the police officer has to be satisfied furtherthat the arrest is necessary for one or the more purposes envisaged bysub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC."

5. On the other hand, learned Government Advocate and counsel for the

objector has pleaded that this is a case for anticipatory bail, the applicant hascommitted cheating and also in conspiracy with his wife, played leading role inprosecution case. It is clearly established from the statement of applicant's wifethat the money received by his wife, out of which Rs.40,00,000/- wastransferred in the account of present applicant. Counsel for the objector hasplaced reliance upon the judgment passed by Hon'ble Apex Court in the case ofAdri Dharan Das Vs. State of W.B. reported in 2005 SCC OnLine SC 357, where it has been held that :- "Ordinarily, arrest is a part of the process of investigationintended to secure several purposes. The accused may have to bequestioned in detail regarding various facets of motive, preparation,commission and aftermath of the crime and the connection of otherpersons, if any, in the crime. There may be circumstances in which theaccused may provide information leading to discovery of material facts.It may be necessary to curtail his freedom in order to enable theinvestigation to proceed without hindrance and to protect witnesses andpersons connected with the victim of the crime, to prevent his dis- appearance to maintain law and order in the locality. For these or otherreasons, arrest may become inevitable part of the process ofinvestigation. The legality of the proposed arrest cannot be gone into inan application under Section 438 o f the Code. The role of theinvestigator is well-defined and the jurisdictional scope of interferenceby the Court in the process of investigation is limited. The Courtordinarily will not interfere with the investigation of a crime or with thearrest of accused in a cognizable offence. An interim order restrainingarrest, if passed while dealing with an application under Section 438 ofthe Code will amount to interference in the investigation, which cannot,at any rate, be done under Section 438 of the Code."

Counsel has opposed the prayer stating that in the present circumstancesof the case, the applicant may not be enlarged on bail. Hence, prays fordismissal of the application.

6. I have heard the counsel for the parties and perused the record.

7 . From the face of record, it is crystal clear that the applicant has committed conspiracy with the complainant and also received amount ofcheating in his account through his wife.

8. Further, the Hon'ble Apex Court in the case of Jai Prakash Singh vs.

State of Bihar and others [2012 (4) SCC 379] while canceling theanticipatory bail of the applicant therein so granted concerned High Court, hasclearly observed that:- "13.....The anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. Thejudicial discretion conferred upon the court has to beproperly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail.

21......The court may not exercise its discretion inderogation of established principles of law, rather it has tobe in strict adherence to them. Discretion has to be guidedby law; duly governed by rule and cannot be arbitrary,fanciful or vague. The court must not yield to spasmodicsentiment to unregulated benevolence. The order dehorsthe grounds provided in Section 438 Cr.P.C. itself suffersfrom non- application of mind and therefore, cannot besustained in the eyes of law."

9. In view of the aforesaid facts and circumstances of the case and thesettled proposition of law laid down by Ho'ble Apex Court in the case of JaiPrakash Singh (supra), no case for anticipatory bail is made out. Hence, theapplication is liable to be and is hereby rejected.

Vindesh

(PREM NARAYAN SINGH)JUDGE