Allahabad High Court
Tarun Jindal vs State Of U.P. And Another on 6 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:80348 Reserved on : 01.04.2024 Delivered on : 06.05.2024 Court No. - 77 Case :- CRIMINAL REVISION No. - 5849 of 2023 Revisionist :- Tarun Jindal Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Abhilasha Singh,Ashutosh Yadav,Shyam Lal Counsel for Opposite Party :- G.A.,Krishna Dutt Tiwari Hon'ble Rajeev Misra,J.
1. Heard Mr. Ashutosh Yadav, the learned counsel for revisionist, the learned A.G.A. for State and Mr. K.D. Tiwari, the learned counsel representing first informant/opposite party-2.
2. Perused the record.
3. This criminal revision is directed against the order dated 25.10.2023, passed by Additional Chief Judicial Magistrate, Court No.1, Moradabad in Criminal Case No. 7410 of 2018 (State of U.P. Vs. Tarun Jindal) arising out of Case Crime No. 05 of 2017, under Sections 504, 506 IPC, Police Station- Katghar, District Moradabad, whereby the discharge application dated 28.4.2022, filed by the revisionist under section 239 Cr.P.C. seeking discharge in aforementioned case, has been rejected.
4. Record shows that in respect of an incident, which is alleged to have occurred on 12.11.2016, a belated F.I.R. dated 16.11.2016 was lodged by first informant/opposite party-2 Akash Kumar Agarwal, which was registered as Case Crime No. 1303 of 2016, under sections 504 and 506 IPC, Police Station- Katghar, District Moradabad. In the aforesaid F.I.R. two persons namely, Tarun Jindal (revisionist herein) and Moolchandra have been nominated as named accused.
5. Since the contents of the FIR shall be decisive in determining as to whether charges under Sections 504 and 506 IPC are made out against accused revisionist or not, therefore, the FIR dated 16.11.2016 is itself being reproduced hereinunder:-
"नकल तहरीर हिन्दी वादी सेवा मे श्रीमान इन्सपेक्टर महोदय थाना कटघर जिला मुरादाबाद महोदय निवेदन है कि प्रार्थी दिनांक 12/11/16 को थाना कटघर क्षेत्र अपने कारखाने करूला पर था सुबह ग्यारह अजे करिब मेरे नम्बर 9412637148 पर 9536464282 से तरूण जिंदल का फोन आया जिसने मुझसे 60 लाख रूपये मेरे द्वारा 6/11/16 को उसकी भांजियो पर करा केस वापिस लेने की धमकी दी अन्यथा जान से मारने की धमकी दी तथा गालिया गलौज करी उसके थोडी देर बाद दुबारा फोन आया जो मेरे पास स्थित मेरे मित्र उमर फारूख ने उठाया तो उसने उन्हे अपना परिचय तरूण का ताऊ मूलचन्द के रूप मे कराया और उन्से भी कहा कि आकाश से कहकर मुझे रूपये दिल्लाओ और केस वापिस ले अन्यथा जान से मार दूंगा उन्होने मेरे कान पे फोन लगा दिया तो मुझसे भी मूलचन्द ने यही कहा उसके बाद भी लगातार फोन करते रहे अतः श्रीमान जी से प्रार्थना है कि प्रार्थी की रिपोर्ट उक्त तरूण जिंदल पुत्र राकेश जिंदल व मूलचन्द निवासीगण 93/7 कृष्णा नगर वाल्मिकी मौ० बुलदशहर के विरूद्ध दर्ज कर कानूनी कार्यवाही करने की कृपा करे आकाश कुमार अग्रवाल म0नं0 27 जवाहरनगर हरपालनगर मुरादाबाद 9412637148 16/11/16 नोटः- मैं सीसी 1760 अशोक कुमार प्रमाणित करता हूं कि तहरीर की नकल बोल बोलकर सीसीटीएनएस प्रोजेक्ट पर का0 2486 नीरज तोमर द्वारा शब्द व शब्द अंकित करायी गयी मूल तहरीर संलग्न एफआईआर है"
6. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory Investigation of concerned case crime number in terms of Chapter XII Cr.P.C. On the basis of material collected by him during course of investigation, he came to the conclusion that complicity of only one of the named accused namely, Tarun Jindal (revisionist herein) alone is established in the crime in question. He, accordingly, submitted the police report dated 29.04.2017 in terms of Section 173(2) Cr.P.C., whereby aforementioned named accused i.e. revisionist herein has been charge-sheeted under sections 504 and 506 IPC, whereas the other named accused has been exculpated.
7. There is nothing on record to suggest that against the aforesaid police report, a protest petition was filed by first informant/opposite party-2.
8. Upon submission of aforementioned charge sheet, cognizance was taken upon same by the Chief Judicial Magistrate, Moradabad and simultaneously he summoned the revisionist in Case No. 7437 of 2018 (State of U.P. Vs. Tarun Jindal) under Sections 504, 506 IPC, vide Cognizance Taking Order/Summoning Order dated 9.8.2018.
9. Feeling aggrieved by the charge sheet No. 197 of 2017 dated 29.4.2017, as well as the Cognizance Taking Order/Summoning Order dated 9.8.2018, the revisionist approached this Court by means of an Application U/S 482 Cr.P.C. No. 39111 of 2018 (Tarun Jindal Vs. State of U.P. and Another). Aforesaid application came to be disposed of by this Court, vide judgement and order dated 14.11.2018. This Court refused to quash the Police report as well as Cognizance Taking Order/Summoning Order but granted liberty to revisionist to seek discharge before Court below in terms of Section 239 Cr.P.C. For ready reference, the order dated 14.11.2018 is reproduced herein under:-
"Heard learned counsel for the applicant and learned A.G.A.
The present application under Section 482 Cr.P.C. has been filed for quashing the charge sheet no. 197/2017 as well as order dated 09.08.2018 passed by learned Chief Judicial Magistrate, Moradabad in Criminal Case No. 7437 of 2018(State Vs. Tarun Jindal) arising out of case crime no. 1303 of 2016 under Sections 504, 506 IPC, Police Station-Katghar, District-Moradabad.
The submission made by learned counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.
From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be through a proper application for the said purpose and they is free to take all the submissions in the said discharge application before the Trial Court.
The prayer made in the aforementioned case is refused.
However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. Lal Kamlendra.
For a period of 30 days from today or till the applicant surrenders and applies for bail whichever is earlier, no coercive action shall be taken against him. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
It is made clear that no further time would be allowed beyond above-mentioned 30 days on any ground.
With the aforesaid directions, this application is finally disposed of."
10. Accordingly, pursuant to the above order dated 14.11.2018, revisionist filed a discharge application dated 28.4.2022 before Court below in terms of Section 239 Cr.P.C. claiming discharge in aforementioned criminal case. This was followed by supplementary application dated 4.11.2022 and another application dated 4.8.2023.
11. Court below upon evaluation of the pleadings raised in the discharge application in the light of the material on record, came to the conclusion that no ground for discharge of accused i.e. revisionist is made out in terms of Section 239 Cr.P.C.
12. Accordingly, discharge prayed for by revisionist was refused by Court below i.e. Additional Judicial Magistrate Court No.4, Moradabad and consequently, the discharge application filed by revisionist was rejected vide order dated 3.1.2023.
13. Feeling aggrieved by the aforesaid order dated 3.1.2023, revisionist approached this Court by means of Criminal Revision No. 1658 of 2023 (Tarun Jindal Vs. State of U.P. and Another). Aforesaid revision was allowed by this Court vide order dated 10.7.2023. The order impugned in the revision i.e. order dated 03.01.2023 was set aside and the matter was remanded before Court below for decision afresh. For ready reference, the same is reproduced herein under:
"1. Supplementary affidavit filed today, is kept on record.
2. Heard Sri Ashutosh Yadav, learned counsel for the revisionist, learned A.G. A. for the State as well as Sri Krishna Dutt Tiwari, learned counsel appearing for opposite party no. 2.
3. This criminal revision is directed against the order dated 3.1.2023 passed by the Additional Judicial Magistrate, Court No. 4, Moradabad in Criminal Case No. 7410/2018 (old number), 7437 of 2018 (New); State Versus Tarun Jindal, arising out of Case Crime No. 05/2017, under Sections-504 and 506 I. P. C., P. S.-Katghar, district-Moradabad, by which discharge application filed by the revisionist was rejected.
4. It is submitted by learned counsel for the revisionist that the order impugned has been passed behind the back of the revisionist on the ground that his counsel was not present before the Court and the case was adjourned for 18.2.2023. Perusal of the order sheet reflects that on 3.1.2023 the accused was present before the Court and the case was fixed for objection / disposal fixing 18.2.2023. It is also submitted by learned counsel for the revisionist that no opportunity of hearing was afforded to the revisionist. It is stated in para 3 of the supplementary affidavit filed on 2.5.2023 that the local counsel of the revisionist Sri Nitin Agarwal was not present in the Court as he was out of district-Moradabad for conducting Complaint Case No. 8132 of 2021 before the C. J. M., Amroha.
5. On the other hand, learned counsel appearing for opposite party no. 2 has submitted that learned Magistrate after considering the entire material and evidence collected by the Investigating officer, has passed a detailed order by which discharge application moved by the accused-revisionist was rejected. It is also submitted by learned counsel for opposite party no. 2 that the revisionist was heard and after hearing both the sides, impugned order was passed and it is incorrect to say that the order was passed ex parte.
6. Perusal of the ordersheet reflects that on 3.1.2023 the case was fixed for 18.2.2023 for objection / disposal and it appears that the order dated 3.1.2023 is ante dated without affording opportunity of hearing to the revisionist.
7. In view of above, this criminal revision is allowed, order dated 3.1.2023 is set aside and the matter is remanded back to the learned Magistrate to decide discharge application afresh after affording opportunity of hearing to the parties concerned, within one month from the date of production of certified copy of this order.
8. For a period of one month or till the disposal of the discharge application, whichever is earlier, no coercive action shall be taken against the revisionist. "
14. Subsequent to above order dated 10.7.2023, Court below re-considered the discharge prayed for by revisionist but again rejected the discharge application filed by revisionist vide order impugned dated 25.10.2023.
15. Thus feeling aggrieved by the order dated 25.10.2023, passed by Additional Chief Judicial Magistrate, Court No.1, Moradabad rejecting the discharge application filed by revisionist, he has now again approached this Court by means of present criminal revision.
16. Mr. Ashutosh Yadav, the learned counsel for revisionist, in challenge to the order impugned, invited the attention of Court to paragraph 22 of the affidavit filed in support of the stay application appended along with memo of revision. With reference to above, he submits that the mother of revisionist had lodged an F.I.R. against opposite party-2, which was registered as Case Crime No. 741 of 2016, under section 302 IPC, Police Station- Kotawali City. Opposite party-2 has been convicted under section 302 IPC, vide judgement and order dated 27.7.2022, passed by Additional Sessions Judge, Court No.6 Bulandshahr in Sessions Trial No. 565 of 2016 (State Vs. Manoj). Copy of the same is on record as Annexure-12 to the affidavit filed in support of present revision.
17. With reference to above, it is urged by the learned counsel for revisionist that present criminal proceedings giving rise to instant criminal revision have been engineered as a counterblast to the aforementioned criminal proceedings initiated against opposite party-2 by the mother of revisionist, as is evident from the fact that the F.I.R. was lodged on 16.11.2016, whereas the Sessions Trial against the opposite party-2, as detailed herein above, had already come into existence in the year 2016. It is, thereafter, the FIR dated 12.11.2016 giving rise to present criminal proceedings was engineered by opposite party-2 on false and fictitious allegation as part of pressure tactics to gain mileage in aforementioned Sessions Trial.
18. At this juncture, the learned counsel for revisionist invited the attention of the Court to the judgement of Supreme court in Rajiv Thapar and Ors. Vs. Madan Lal Kapoor reported in 2013 (3) SCC 330. Reference was made to paragraph 30 of the report, which according to the leraned counsel for revisionist is relevant for the issue emerging from aforesaid fact. The same reads as under:
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1.Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4.Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
19. With reference to above, it is thus urged by the learned counsel for revisionist that when the test laid down by Apex Court in the case of Rajiv Thapar (Supra), is applied to the facts of the present case, it is evident that present criminal proceedings are not only false but also malicious.
20. Reference has then been made to the judgement of Supreme Court in Sanjay Kumar Rai Vs. State of Uttar Pradesh and Another (2022) 15 SCC 720. Reliance is placed upon paragraphs 14, 15, 16 and 17 of the report in support of the contention that this Court in spite of the earlier order dated 14.11.2018, can still quash the proceedings of aforementioned case, if circumstances warrant. For ready reference, the same are extracted herein under:
"14. The correct position of law as laid down in Madhu Limaye [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] , thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are, therefore, not affected by the bar of Section 397(2)CrPC. That apart, this Court in the abovecited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its aforestated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.
15. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] ]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.
16. This brings us to the present case wherein the High Court has not gone into the merits of the case and did not analyse the case in light of the settled law referred to above.
17. The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that "discharge" is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly, we set aside the impugned order dated 28-11-2018 [Sanjay Kumar Rai v. State of U.P., 2018 SCC OnLine All 5995] and remand the case back to the High Court for its reconsideration in accordance with law."
21. With reference to above, the learned counsel for revisionist contends that from the perusal of the FIR as well as statement of the first informant recorded under Section 161 Cr.P.C., copies of which are on record as Annexures-1 and 2 to the stay application filed along with the memo of revision, it is explicitly clear that no offence under Sections 504 and 506 IPC is made out against revisionist. To buttress his submission, the learned counsel for revisionist has referred to the judgment of Supreme Court, this Court and other High Courts. The same shall be dealt with in the later part of this judgment.
22. In order to appreciate the aforementioned submission urged by the learned counsel for revisionist, it is imperative to refer to the provisions of Sections 504 and 506 IPC. Accordingly, the same are reproduced hereinunder:-
• Section 504 IPC reads as under:- Intentional insult with intent to provoke breach of the peace.--
Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
23. According to Ratanlal and Dheerajlal on IPC, 33rd Edition, the following are the ingredients of Section 504 IPC:-
"2. Ingredientss - This Section requires two essentials:-
(i) Intentionally insulting a person and thereby giving provocation to him.
(ii) The person insulting must intend or know it to be likely that such provocation will cause him to break the public peace or to commit any other offence."
24. The learned Authors have then opined that in order to prove a charge under Section 504 IPC, the following things must be established:-
"It is clear from the Section that in order to attract Section 504 of the Indian Penal Code, the following things must be established:
(a) That the accused insulated some person
(b) That he did so intentionally
(c) That he thereby gave provocation to some person
(d) That he then intended or knew it to be likely that the provocation given will cause him to break public peace or commit any other offence."
• Section 506 IPC reads as under:- Punishment for criminal intimidation.--
Whoever commits, the offence of criminal intimidation shall be punished with imprison-ment of either description for a term which may extend to two years, or with fine, or with both;If threat be to cause death or grievous hurt, etc.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
25. According to Ratanlal and Dheerajlal on IPC, 33rd Edition, the following are the ingredients of Section 506 IPC:-
"(a) Essential Ingredients - The offence of criminal intimidation has been defined under Section 503 I.P.C., Section 506 provides punishment for it.
An offence under Section 503 has following essentials:
1. Threatening a person with any injury;
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that person is interested.
2. The threat must be with intent;
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat."
26. The same Authors have then opined that in order to prove a charge under Section 506 IPC, the following things must be established:-
"(b) Evidence - To bring home an offence under Section 506, I.P.C. the prosecution is to prove (a) that the accused threatened the victim; (b) that this threatening was with any injury to his person, reputation or property; or to the person, reputation or property of another in whom the victim is interested; (c) that this threatening was intended to cause alarm to the victim or to cause the victim to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat; (d) that the victim has in fact been alarmed by the threat; the threat to injury may be in relation to reputation of a deceased person."
27. According to the learned counsel for revisionist, when the recital contained in the FIR and the statement of the first informant as recorded under Section 161 Cr.P.C., are examined in the light of above, it is evident that the essential ingredients for constituting a charge under Sections 504 and 506 IPC are not satisfied in the present case inasmuch as, the alleged statement is alleged to have been made on telephone and secondly, the exact contents of the abusive language used by the revisionist has not been disclosed. In this regard, reference is made by the learned counsel for revisionist to the judgment of the Kerala High Court in Ramla Kabeer Vs. The State of Kerala), 2023 KER 61647, wherein Court has held that abusing on telephone is no offence. Paragraphs 6 and 7 of the judgment are relevant for the controversy in hand and accordingly, the same are extracted herein under:-
"6. Admittedly the allegation is that the petitioner contacted the defacto complainant over phone and used abusive language. Even if the petitioner used abusive words over phone, that would not attract an offence under section 294(b) IPC in the light of the dictum laid down by this court in James Jose case (supra). Moreover, the abusive words mentioned in Annexure A complaint would not attract the ingredients of offence under section 294(b) IPC. As far as Section 506(i) IPC is concerned, the prosecution has to prove that the petitioner commits the offence of criminal intimidation. Criminal intimidation is defined in Section 503 IPC which says that 'whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation'.
7. Here the prosecution alleged that the petitioner, a 51-year-old citizen, used abusive language to the Station House Officer of Alappuzha North Police Station over phone. Even if the entire allegation in the final report is accepted, I am of the considered opinion that the offences under Section 294(b), Section 506(i) of IPC and Section 120(o) of the Police Act are not made out in this case."
In support of the submission that it is mandatory for the first informant to disclose the actual words spoken, which in this case has admittedly not been disclosed, the learned counsel for revisionist has relied upon the judgment of this Court in Jodh Singh Vs. State of U.P., LAWS (All)-1991-4-55. Reference is made to paragraph 6 of the report, which reads as under:-
"6. In a complaint Under Section 504, IPC the complainant must mention the actual words which were used by the accused while insulting him/her otherwise the court will not have enough material before it to come to a conclusion whether the words used by the accused amounted to intentional insult. Further more the complainant must give out in the complaint that the accused intended or knew that insulting words used by him were likely to provoke the complainant in either to break the peace or to commit some other offence."
Learned counsel for revisionist has also referred to another judgment of this Court in Shamsuddin Vs. State of U.P., LAWS(All)-2005-8-147, wherein also the Court has held that disclosure of the exact abusive language for constituting a charge under Section 504 IPC is mandatory. Following has been observed by the Court in the penultimate part of paragraph 6 and in paragraph 7;-
"6..........
As regards the charge for the offence of causing intentional insultto Dwarika (PW-2) with intent to provoke him for breach of peace punishable under Section 504 IPC, the settled view is that the person who claims to have been insulted must narrate the actual word used for such insult which might provoke him to brak the public peace or to commit any other offence. Here the prosecution case is that Dwarika (PW-2), the father of complainant was abused by use of filthy languate. That language has not been reproduced either in the FIR or in the statement of Dwarika himself recorded before the trial Court. The general statement of the fact has been given that the accused was abusiing Dwarika at the time of the incident using filthy language. PW-3 has also not reproduced those insulting words alleged to have been used by the accused against Dwarika. It is PW-1, the complainant only who has given the details of the language used in his statement, but his evidence alone, not finding corroboration in the FIR nor substantiated by the person who is said to have been insulted, will not be of that probative value to the prosecution nor it is worth believing for recording conviction for the said offence punishable under Section 504 IPC.
7. THUs, in view of the aforesaid, the conviction recorded by the Court below for the aforesaid offence punishable under Sections 323 and 504 IPC against the appellant appears to be unsustainable in the eye of law. The prosecution has not succeeded to bring home the guilt for the aforesaid offences to the hilt. The appellant is entitled to the benefit of doubt in the present case and the appeal should be allowed.
In the result, the appeal is allowed."
28. In Fiona Shrikhande Vs. State of Maharashtra and Another, (2013) 14 SCC 44, the Court examined the veracity of the proceedings and upon evaluation of the same concluded that no offence under Section 504 IPC is made out. Paragraphs 13 and 14 of the report have been relied upon by the learned counsel for revisionist. The same are, accordingly, reproduced herein below:-
13. Section 504 IPC comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.
14. We may also indicate that it is not the law that the actual words or language should figure in the complaint. One has to read the complaint as a whole and, by doing so, if the Magistrate comes to a conclusion, prima facie, that there has been an intentional insult so as to provoke any person to break the public peace or to commit any other offence, that is sufficient to bring the complaint within the ambit of Section 504 IPC. It is not the law that a complainant should verbatim reproduce each word or words capable of provoking the other person to commit any other offence. The background facts, circumstances, the occasion, the manner in which they are used, the person or persons to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504 IPC.
29. Learned counsel for revisionist has then referred to the judgment of Supreme Court in Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423 and has referred to paragraphs 11 and 12, which read as under:-
11. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in Section 503 IPC is as under:-
"503. Criminal Intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
A reading of the definition of "Criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the minds of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.
30. Reference is also made to another decision of the Supreme Court in Vikram Johar Vs. State of U.P. and Another, (2019) 14 SCC 207 and paragraphs 16 and 21 to 26 have been relied upon. Accordingly, the same are extracted herein under:-
16. A Three-Judge Bench of this Court in State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568, had occasion to consider discharge under Section 227, it was held by the court that Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements.
21. Section 504 of I.P.C. came up for consideration before this Court in Fiona Shrikhande Vs. State of Maharashtra & Another, (2013) 14 SCC 44. In the said case, this Court had occasion to examine ingredients of Section 504, which need to be present before proceeding to try a case. The Court held that in the said case, the order issuing process was challenged by filing a criminal revision. This Court held that at the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused. In paragraph No.11, following principles have been laid down (SCC pp. 48-49):-
"11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. The Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have."
22. In paragraph No.13 of the judgment, this Court has noticed the ingredients of Section 504, which are to the following effect: (Fiona Shrikhande case, SCC p. 49)-
"13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC."
23. In another judgment, i.e., Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423, this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal intimidation, this Court laid down following in paragraph Nos. 11 and 12: (SCC pp. 427-28)-
"11. Xxxxxxxxxxxxx A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC."
In the above case, allegation was that appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506.
24. Now, we revert back to the allegations in the complaint against the appellant. The allegation is that appellant with two or three other unknown persons, one of whom was holding a revolver, came to the complainant's house and abused him in filthy language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No.13 of the judgment of this Court in Fiona Shrikhande (supra).
25. Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edition with regard to proof of offence states following: -
"...The prosecution must prove:
(i) That the accused threatened some person.
(ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested;
(iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat."
A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.
26. On the principles as enumerated by this Court in Fiona Shrikhande (supra) and Manik Taneja (supra), we are satisfied that ingredients of Sections 504 and 506 are not made out from the complaint filed by the complainant. When the complaint filed under Section 156(3) Cr.P.C., which has been treated as a complaint case, does not contain ingredients of Sections 504 and 506, we are of the view that Courts below committed error in rejecting the application of discharge filed by the appellant. In the facts of the present case, we are of the view that appellant was entitled to be discharged for the offence under Sections 504 and 506 IPC."
31. With reference to the ratio laid down in aforementioned judgments and the provisions contained in Sections 504 and 506 IPC, it is thus urged by the learned counsel for revisionist that when the recital contained in the FIR and the statement of first informant as recorded under Section 161 Cr.P.C. are taken as a whole, it is evident that the alleged statement of the accused revisionist is said to have been made on telephone. The actual words uttered by the accused revisionist have, however, not been disclosed. Moreover, even as per the recital contained in the FIR/the statement of first informant, it cannot be said that the same fulfill the remaining part of the aforesaid sections. The prosecution story as unfolded in the FIR was disbelieved to the extent, it relates to co-accused Moolchand. There is nothing on record to show that a protest petition was filed by the first informant/opposite party-2 against the police report dated 29.04.2014. On the above conspectus, the learned counsel for revisionist contends that the present criminal proceedings are not only illegal but an abuse of the process of the Court. In view of above as well as the observations made by the Supreme Court in the case of Sanjay Kumar Rai (Supra), the present proceedings cannot be sustained and are, therefore, liable to be quashed by this Court.
32. Per contra, the learned A.G.A. has opposed the present criminal revision. He submits that Court below has passed a detailed order refusing to discharge the revisionist. The order impugned does not suffer from any illegality. As such, present criminal revision is liable to be dismissed. According to the learned A.G.A., the revisionist was charge sheeted on the basis of the material collected by Investigating Officer during the course of investigation. However, when the discharge application was filed by revisionist before Court below, no new material had emerged on the record on the basis of which, it could be said that no offence under Sections 504 and 506 IPC is made out against revisionist. Learned A.G.A. submits that in the absence of any new material, having emerged subsequent to the submission of the police report, the revisionist for all practical purposes is seeking a review of the Cognizance Taking Order/Summoning Order passed by Court below, which is not permissible in criminal jurisprudence. At the time of considering the discharge application, the Court has to see whether sufficient material exists on record to sustain the prosecution of an accused or not whether on the evidence on record, the accused can be convicted? In fact, the trial of an accused can be sustained even on the basis of grave suspicious. It is thus urged by the learned A.G.A. that in view of above, no good ground is made out for interference by this Court in present criminal revision. The present criminal revision is thus liable to be dismissed.
33. Mr. K.D. Tiwari, the learned counsel representing opposite party-2 has also opposed this criminal revision. He has, however, adopted the arguments raised by the learned A.G.A.
34. Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, the learned counsel representing opposite party-2 and upon perusal of record, this Court finds that it is an undisputed fact that the mother of the revisionist had lodged an FIR against first informant-opposite party-2, which was registered as Case Crime No. 741 of 2016, under Section 302 IPC, Police Station-Kotwali City, District-Mooradabad. It has further come on record that first informant-opposite party-2 was convicted under Section 302 IPC, vide judgment and order dated 27.07.2022 passed by Additional Sessions Judge, Court No.-6, Bulandshahar in Sessions Trial No. 565 of 2016 (State Vs. Manoj) arising out of aforementioned case crime number vide judgment and order dated 27.07.2022. The FIR giving rise to the present criminal proceedings was lodged on 16.11.2016 i.e. during the subsistence of Sessions Trial No. 565 of 2016 (State Vs. Manoj). Prima-facie, the present criminal proceedings appear to have been engineered as a counterblast to the aforementioned criminal proceedings, which came into existence on account of an FIR lodged by the mother of the revisionist against first informant-opposite party-2. By reason of above, the principles laid down by the Apex Court in the case of Rajeev Thapar (Supra) and Sanjay Kumar Rai (Supra), are fully attracted in the present case.
35. The prosecution story as unfolded in the FIR is to the effect that the revisionist is alleged to have made certain statement to the accused on telephone. However, neither in the FIR nor in the statement of the first informant recorded under Section 161 Cr.P.C., it can be gathered that the other ingredients of Section 504 or 506 IPC as noted above, are satisfied against the revisionist. Once the actual words uttered by the accused revisionist on telephone have not been disclosed, therefore, no charge under Section 504 IPC can be maintained against the revisionist. Similarly, the charge under Section 506 IPC also cannot be maintained for want of material particulars. Apart from above, the present criminal proceedings appear to have been engineered as a counter blast to the criminal prosecution of the first informant under Section 302 IPC on the basis of an FIR lodged by the mother of revisionist. Therefore, the test laid down by the Apex Court in the case of Rajeev Thapar (Supra), as to when the High Court can quash the proceedings even at the stage of discharge is clearly attracted. As such, the order impugned as well as the entire criminal proceedings of aforementioned criminal case cannot be sustained and are, therefore, liable to be quashed.
36. In view of the discussion made herein above, present criminal revision succeeds and is liable to be allowed.
37. It is, accordingly, allowed.
38. The impugned judgment and order dated 25.10.2023, passed by Additional Chief Judicial Magistrate, Court No.1, Moradabad in Criminal Case No. 7410 of 2018 (State of U.P. Vs. Tarun Jindal) arising out of Case Crime No. 05 of 2017, under Sections 504, 506 IPC, Police Station- Katghar, District Moradabad is hereby set aside. Furthermore, the entire proceedings of aforementioned criminal case now pending in the Court of Additional Chief Judicial Magistrate, Court No.1, Moradabad shall also stand quashed. The concerned Magistrate shall consign the proceedings of aforementioned criminal case to the record.
39. However, in the facts and circumstances of the case, there shall be no order as to costs.
Order Date :- 06.05.2024 Vinay