TMI Blog2021 (2) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, the applicant may be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi) [ 2020 (1) TMI 1193 - SUPREME COURT ] The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court. The anticipatory bail application is allowed. This Court directs that till filing of the chargesheet, in the event of arrest, the accused-applicant, shall be released forthwith on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Arresti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular accounts of the same. He has further submitted that he is in a position to explain the ownership of the entire gold recovered during the proceedings in the instant case as well as entire silver and gold as well as cash recovered from his shop and resident at Nagpur. He further submitted that he has already given all the details of his transactions to the Customs Department which has been admitted in the counter affidavit but the Customs Department has not taken any final decision in the same and in the counter affidavit it has been stated that they are still scrutinizing the reply filed by the applicant. 6. It has been vehemently submitted that along with the said reply, the applicant has also submitted the melting certifications which may indicate as to the quality of the gold which was procured by him and subsequently converted in the jewellery. 7. Learned Senior counsel for applicant further submits that in case the department comes to a conclusion that the said gold which was seized is a foreign origin and has been illegally imported then the same would be liable to be confiscated and subsequently the report is to be forwarded to the adjudicating authority under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is nonbailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short 'Cr.P.C.), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the 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. Law further requires the police officers to record the reasons in writing for not making the arrest. 7.2 In pith and core, the police office 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 is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. 8.4 In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny. 9. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows: 41A. Notice of appearance be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest be discouraged and discontinued. 12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine. 10. It is contended that the applicant has no criminal history and there is no possibility of the applicant fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is granted anticipatory bail, he will not misuse the liberty of bail. 11. Sri Digvijay Nath Dubey, learned counsel for respondent opposes the application but could not rebut the aforesaid proposition. 12. In considering as to whether the applicant is entitled for grant of anticipatory bail, this Court must take into account and weigh the relevant considerations with the facts of the case. The relevant considerations for grant of anticipatory bail have been duly considered by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d authority is considering the reply submitted by the applicant wherein he has submitted all the papers regarding gold seized by them as well as Silver and cash seized at his residence. It is also duly considered that even in case a contrary finding is being recorded by the Customs Department, the applicant still will have an opportunity before the Adjudicating Officer as well as further proceedings under the settlement. 14. The Court has considered the rival submissions and looking into the circumstances as well as annexures which have been annexed with the application for anticipatory bail as well as supplementary counter, this Court finds it a fit case to allow the present anticipatory bail application. 15. After considering the rival submissions this court finds that there is a case registered/about to be registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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