2024:BHC-NAG:9835
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (ABA) NO. 501 OF 2024
Shubham Chandramani Paunikar Vs State of Maharashtra
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Mr. A.Y Humne, counsel for applicant.
Mrs. R.V. Sharma, APP for non-applicant/State.
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 30/08/ 202 4 .
1. Apprehending the arrest at the hands of police, in
connection with Crime No. 338/2023 registered with Police
Station Butibori, Tq. Hingana, District Nagpur for the
offence punishable under Section 407 read with Section 34
of the Indian Penal Code, 1860, the applicant approached
this Court for grant of pre-arrest bail.
2. The crime is registered on the basis of a report
lodged by Jagdish Gopal Bokade, alleging that the present
applicant, along with co-accused Budhadip Harichandra
Gajbhiye, did not pay the entire loan amount which was
obtained by the group of women. It is alleged that the
informant is a Branch Manager of financial institutions, i.e.,
Bharat Financial Inclusion Limited, Branch at Butibori. The
applicant was working as an agent with the said bank. There
were some groups of women to whom the loans were
sanctioned, and the present applicant, being an agent, was
communicating and obtaining the amount of the
installments from the said women, but he has not deposited
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the said loan amount in their respective accounts or
deposited the less amount and misappropriated the
amounts. On the basis of the said report, police have
registered the crime against the present applicant.
3. Learned counsel for the applicant submitted that, as
far as the present applicant is concerned, his involvement is
on the basis of the false report filed by the Branch Manager.
He submitted that the investigating officer has issued the
notice under Section 41-A of Cr.P.C., which itself is sufficient
to show that custodial interrogation of the present applicant
is not required. Moreover, the punishment provided is upto
seven years. In view of that, the applicant be protected by
granting anticipatory bail.
4. Learned APP strongly opposed the said application
on the ground that, considering the misappropriation
amount and the involvement of the present applicant in the
financial scam, the custodial interrogation of the present
applicant is required. In view of that, the application
deserves to be rejected.
5. After hearing learned counsel for the applicant and
learned APP for the state, perused the recitals of the FIR,
from which it reveals that the FIR is lodged by the Branch
Manager of the said financial institutions, wherein the
present applicant was working as an agent. As part of the
financial transactions of the said financial institutions, they
were sanctioning the loan to various groups of women
organizations. Accordingly, some organizations have
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obtained the loan from the bank, but the installment amount
was not deposited by the present applicant in their
respective accounts and misappropriated the same.
6. Learned APP admitted that the notice was issued to
the applicant under Section 41-A of Cr.P.C., and the issuance
of notice under Section 41-A of Cr.P.C. itself is sufficient to
show that custodial interrogation of the present applicant is
not required. Moreover, the punishment provided for the
alleged offence is upto the seven years.
7. Considering the same, the observation of the
Hon’ble Apex Court in the case of Satender Kumar Antil
Versus Central Bureau Of Investigation & Anr. [2022
LiveLaw (SC) 577] is relevant, wherein it is observed that
Section 41 under Chapter V of the Code deals with the arrest
of persons. Even for a cognizable offense, an arrest is not
mandatory as can be seen from the mandate of this
provision. If the officer is satisfied that a person has
committed a cognizable offense, punishable with
imprisonment for a term which may 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 satisfied
that there is a reason to believe or suspect, that the said
person has committed an offense, and there is a necessity for
an arrest. Such necessity is drawn to prevent the committing
of any further offense, for a proper investigation, and to
prevent him/her from either disappearing or tampering with
the evidence. He/she can also be arrested to prevent such
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persons from making any inducement, threat, or promise to
any person according to the facts, so as to dissuade him
from disclosing said facts either to the court or to the police
officer.
8. This provision mandates the police officer to record
his reasons in writing while making the arrest. Thus, a police
officer is duty-bound to record the reasons for arrest in
writing. Similarly, the police officer shall record reasons
when he/she chooses not to arrest.
9. The consequence of non-compliance with Section
41 shall certainly inure to the benefit of the person
suspected of the offense. Section 41A deals with the
procedure for appearance before the police officer who is
required to issue a notice to the person against whom a
reasonable complaint has been made, or credible
information has been received or a reasonable suspicion
exists that he has committed a cognizable offence, an arrest
is not required under Section 41(1).
10. Thus, issuance of the notice under Section 41-A
itself is sufficient to show that, at this moment, the
investigating officer has no sufficient reasons to arrest the
present applicant. Considering the same, application
deserves to be allowed by imposing certain conditions.
Accordingly, I proceed to pass the following order;
a] The criminal application is allowed.
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b] In the event of her arrest, in connection with
Crime No. 338/2023 registered with police
station Butibori, Tq. Hingana, District Nagpur
for the offence punishable under Section 407
read with Section 34 of the Indian Penal Code,
1860, the applicant – Shubham Chandramani
Paunikar, shall be released on anticipatory bail,
on executing P.R. bond of Rs. 25,000/- with
one solvent surety in the like amount.
c] The applicant shall attend the concerned police
station once in a week on Sunday between
10.00 a.m. to 01.00 p.m. and shall cooperate
with the investigating agency.
d] The applicant shall not induce, threat or
promise any witnesses who are acquainted
with the facts of the present case.
e] The applicant shall furnish his cellphone
number and address with address proof along
with the names of his two relatives and their
address and address proof.
f] The applicant shall not leave the jurisdiction of
Nagpur District without prior permission of
this Court.
The application is disposed of.
[URMILA JOSHI-PHALKE, J.]
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