Madhya Pradesh High Court
Sudha Tripathi vs The State Of Madhya Pradesh on 2 May, 2019
Equivalent citations: AIRONLINE 2019 MP 770, 2019 CRI LJ 3993
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.11871/2019
(Sudha Tripathi Vs. State of M.P. and Anr.)
Gwalior, Dated :02.05.2019
Shri A.K.Mishra, Advocate with Shri Himanshu Pandey,
Advocate for the petitioner.
Shri Anmol Khedkar, Panel Lawyer for the respondent No.
1/State.
Shri Prashant Sharma, Advocate for respondents No.2.
1. Inherent powers of this Court u/S.482 of Cr.P.C. are invoked seeking quashment of charge-sheet bearing Crime No.128/2015 registered at Police Station Jhansi Road, District Gwalior alleging offences punishable u/S.384, 420, 467, 468, 471 and 120-B of IPC against the petitioner and five other named accused.
2. The solitary contention of counsel for the petitioner in support of the aforesaid challenge is that the offence of extortion as alleged is not made out even by the mere reading of the allegations in the FIR and the supportive documents especially in the absence of any material to even prima facie indicate that any property or valuable security was delivered to the petitioner/accused pursuant to the alleged threat and inducement extended by the petitioner, the offence of extortion even on prima facie basis is not made out. 2 2.1. Learned counsel for the petitioner has relied upon the decision in Isaac Isanga Musumba and Ors. Vs. State of Maharastra and Ors. reported in (2014) 15 SCC 357. 2.2. Per contra the learned counsel for the respondent/complainant and the State do not dispute that there has been no delivery of property or valuable security to the accused/petitioner by the complainant but since one of the primary ingredients of the offence of extortion, of extending threat and fear of injury by the petitioner/accused to the respondent/complainant is complete, the offence of extortion is attempted to be committed even in the absence of the other ingredient of delivery of property or valuable security to the accused/petitioner. It is thus, submitted by the respondent/complainant and the State that in the given facts and circumstances even where delivery of property and valuable security is missing the offence of extortion is made out and punishable u/S. 384 with the aid of Sec. 511 of IPC.
3. Before dealing with the contentions of rival parties, it would apt to first consider the allegations as per the FIR registered on 11.04.2015 by the respondent/complaint against six named accused including the petitioner which is to the effect that co-accused Amit was known to the complainant because he used to study in Jiwaji University about six months back. The FIR alleges that the said co- accused Amit met the complainant at Chetakpuri petrol pump and 3 inquired as to whether the marriage of the complainant has been fixed with someone else to which the complainant responded that he should minded his own business. It is alleged thereafter, that the said co-accused Amit threatened the complainant that he would ensure that said marriage does not take place and extended criminal intimidation to the complainant who got scared. After a few days when the complainant got over the feeling of intimidation, she informed her family members about the incident. The FIR thereafter alleges that the parents of the complainant confronted the parents of co-accused Amit including his mother Smt. Sudha Tripathi who is petitioner herein but no fruitful resolve could take place. It is alleged that the parents of co-accused Amit further repeated the threat that they would ensure that the marriage of complainant as fixed with someone else does not take place. The FIR thereafter alleges that sometime in January / February, 2015 on asking of co- accused Amit, the father of complainant went to the house of petitioner/accused and her parents where the co-accused Dilip Pandey (father of accused Amit) demanded an amount of Rs.20,00,000/- from the father of complainant by extending threat that if the said amount is not delivered to the accused the marriage of complainant as fixed would not materialize. In furtherance of this threat and intimidation, WP No.1357/2015 was filed by co-accused Amit Tripathi against the father of complainant seeking issuance of 4 writ of habeas corpus for creating pressure, which was heard on 24.03.2015 when the complainant who was alleged to be the corpus in the said petition appeared before the Court and made her statement against the co-accused Amit Tripathi, which led to dismissal of said petition. The FIR further alleges that during the course of hearing of the said petition in the high court, same threat and intimidation was extended to the father of the complainant that if Rs.20,00,000/- is not delivered to the petitioner and the other co- accused, then they would ensure scuttling of marriage of complainant. The FIR also alleges that the said threat were repeated again and again by the petitioner and other co-accused. The FIR lastly alleges that for giving effect to the threat and intimidation as aforesaid the petitioner and the accused also allegedly committed forgery.
3.1. On the strength of aforesaid allegation, it is to be seen as to whether the offence of extortion as alleged against petitioner is made out or not ? It is also to be seen that in case the offence of extortion is not made out, then whether the allegation attract any other offence than than the ones alleged.
4. Pertinently, the FIR alleged offences of cheating, forgery and extortion with the aid of criminal conspiracy but after investigation charge-sheet filed merely alleged offence of extortion u/S. 384 r/w Sec. 120-B. 5
5. Before embarking upon the exercise of adjudication, it would be appropriate to reproduce the relevant provisions which lie at the center stage of controversy, i.e., Sec.383, 384, 385, 386, 387, 388, 389 and 511 of IPC as follows:-
Sec.383:- Extortion.--Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion"
Sec.384:-Punishment for extortion.--Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Sec.385:-Putting person in fear of injury in order to commit extortion.--Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Extortion by putting a person in fear of death or grievous hurt.--Whoever commits extortion by putting any person in fear of death or of grievous hurt o that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Sec.386:-Extortion by putting a person in fear of death or grievous hurt.--Whoever commits extortion by 6 putting any person in fear of death or of grievous hurt o that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Sec.387:-Putting person in fear of death or of grievous hurt, in order to commit extortion.--Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Sec.388:-Extortion by threat of accusation of an offence punishable with death or imprisonment for life, etc.--Whoever commits extortion by putting any person in fear of an accusation against that person or any other, of having committed or attempted to commit any offence punishable with death, or with 1[imprisonment for life], or with imprisonment for a term which may extend to ten years or of having attempted to induce any other person to commit such offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be one punishable under section 377 of this Code, may be punished with 1[imprisonment for life].
Sec.389:-Putting person in fear of accusation of offence, in order to commit extortion.--Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of an accusation, against that person or any other, of having committed, or attempted to commit an offence punishable with death or with 1[imprisonment for life], or with imprisonment for a term which may 7 extend to ten years, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be punishable under section 377 of this Code, may be punished with 1[imprisonment for life.
Sec.511:-Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprison- ment provided for that offence], or with such fine as is provided for the offence, or with both 5.1. A plane reading of definition of extortion u/S.383 of IPC discloses the following essential ingredients:-
1. accused intentionally puts the victim to fear of injury to his /her person or to any other person,
2. thereby accused dishonestly induces the person put to fear,
3. to deliver to any person any property/valuable security, 5.2. Thus, extortion is made out whenever fear of injury is extended with an intent to induce the person put to fear impelling the victim to deliver property or any valuable security. 8 5.3. In the instant case, petitioner instilled fear in the mind of complainant and her father with an intent to induce them to part with Rs.20,00,000/- and deliver the same to the petitioner. Thus, the first two essential ingredients of putting the complainant and her father to fear of injury and induce them to part of their property/valuable security is prima facie made out, from the bare reading of allegation in the charge-sheet. However, the third ingredients of delivery of property/valuable by the complainant in favour of someone is missing since in the case herein neither did the complainant nor her father part with the Rs.20,00,000/- nor was the said amount delivered to the petitioner/accused. 5.4. The allegations thus reveal that in the absence of delivery of valuable security in favour of the petitioner, the offence of extortion as defined in Sec.383 of IPC and punishable u/S.384 of IPC, may not be committed in entirety but it remains to be seen whether any attempt to commit extortion is made out or not ? 5.5. However, the offence of extortion is dealt with in IPC from Sec.383 to 389 as an aggravated form of theft and therefore, these sections are sandwiched between the sections pertaining to theft and robbery.
5.6. Pertinently, the provision from Sec.383 to 389 IPC are essentially divided into two categories of extortion. The extortion as defined in Sec.383 when complete by satisfaction of all the three 9 aforesaid ingredients is dealt with and made punishable u/Ss.384, Sec.386 and 388 IPC. These three sections get attracted when the offence of extortion is committed on satisfaction of all the three aforesaid ingredients with the only difference being in degree of gravity.
5.7. The other category of extortion relates to those acts where the transaction of extortion is not complete due to the last ingredient of delivery of property/valuable or valuable security being missing, despite the former two ingredients of fear of injury and inducement being satisfied. These sections are Sec.385, 387 and 389. The common thread running through the said three sections is the expression "whoever in order to the committing of extortion ..........." which is employed in these three sections making the legislative intent clear that they relate to a situation where the accused in order to commit extortion puts the victim in fear of injury to cause inducement but not leading to any delivery of property/valuables in favour of accused.
5.8. Therefore, it is obvious that the provision from Sec.385, 387 and 389 of IPC relate exclusively to instances of attempted extortion where entire transaction of extortion as defined in Sec. 383 IPC is not complete.
5.9. Consequently, since the commission of extortion and an attempt to commit extortion are both provided for in the sections 10 from Sec.383 to 389, the resort to be made to the residuary clause u/S 511 of IPC is uncalled for.
5.10. The aforesaid view of this Court emphasing the subtle difference between attempt and commission of offence is supported by the law laid down by Apex Court in Satvir Singh And Ors vs State Of Punjab And Anr, (2001) 8 SCC 633 (Paras-9, 10 and 11) which are reproduced below for ready reference and convenience:-
9. Now, we have to see whether the appellants can be convicted under Section 511 read with Section 304B IPC. For that purpose it is necessary to extract Section 511 as under:
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.- Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with such fine as is provided for the offence, or with both.
10. The above section is the solitary provision included in the last chapter of the IPC under the title Of Attempts to Commit Offences. It makes attempt to 11 commit an offence punishable. The offence attempted should be one punishable by the Code with imprisonment. The conditions stipulated in the provision for completion of the said offence are: (1) The offender should have done some act towards commission of the main offence. (2) Such an attempt is not expressly covered as a penal provision elsewhere in the Code.
11. Thus, attempt on the part of the accused is sine qua non for the offence under Section 511. Before considering the question as to what is meant by doing any act towards the commission of the offence as an inevitable part of the process of attempt, we may point out that the last act attributed to the accused in this case is that they asked Tejinder Pal Kaur (PW-5) to go to the rail track and commit suicide. That act of the accused is alleged to have driven the young lady to proceed to the railway line on the next morning to be run over by the train. Assuming that the said act was perpetrated by the appellants and that the said act could fall within the ambit of attempt to commit the offence under Section 304B it has to be considered whether there is any other express provision in the Code which makes such act punishable. For this purpose we have to look at Section 498A which has been added to the IPC by Act 46 of 1983. That provision makes cruelty (which a husband of a woman or his relative subjects her to) as a punishable offence. One of the categories included in the explanation to the said section (by which the word cruelty is defined) is thus:
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause 12 grave injury or danger to life, limb or health (whether mental or physical) of the woman;
5.10(a). The Apex Court has further dealt with the same issue at a subsequent point of time in Abhyanand Vs. State of Bihar, AIR 1961 SCC 1698 (Paras 11 and 12)
11. Another contention for the appellant is that the facts proved do not go beyond the stage of reparation for the commission of the offence of `cheating' and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations (1) (1889) I.L.R. 12 Mad. 151. (2) (1893) I.L.R. 15 All. 210, are complete and the culpit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression 'attempt to commit an offence' and is exactly what the provisions of S.511, Indian Penal Code, require. The relevant portion of S.511 is:
"Whoever attempts to commit an offence punish- able by this Code......... or to cause such an offence to be 13 committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished........."
These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence. It follows, therefore, that the act which would make the culprit's attempt to commit an offence punishable, must be an act which, by itself, or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by s.511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence.
12. It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear. 5.10(b). Similarly in Shudhir Kumar Mukharjee and Sham 14 Lal Shaw, 1974 (3) SCC 357, Para-5 is relevant:-
"5. The dividing line between a preparation and an attempt is no doubt very thin, and though the principle involved is well established the difficulty arises in drawing the line in the particular circumstances of a case. The relevant portion of S. 511 is :
"Whoever attempts to commit an offence punishable by this Code . . . . or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished."
The law on this point was elaborately discussed with reference to all the decided cases by this Court in its decision in Abhavanand Mishra v. State of Bihar. We will confine ourselves to stating a few relevant extracts therefrom. It was pointed out in that decision that "The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence as contemplated by s.511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence." The -decision in The Queen v. Ramsarun Chowbey(2) was referred to and this Court specifically laid down that the act towards the commission of such an offence need not be an act which leads immediately to the 15 commission of the offence. The decision In the matter of the petition of R. MacCrea(l) was also referred to. The purport of that decision was explained to be that S. 511 was not meant to cover only the penultimate act towards the completion of an offence; acts precedent, if those acts are done in the course of the attempt to commit the offence, and were done with the intent to commit it and done towards its commission we're also covered. In that decision Knox, J. said "Again, the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be, a criminal attempt, in my opinion, because the person committing the offence does or may repent before the attempt is completed."
This Court cited with approval the statement of Blair, J. "It seems to me that that section (s.511) uses the word ,attempt' in a very large sense; it seems to imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence, that is, conducive to its commission, is itself punishable, and though the act does not use the words, it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. It says expressly that whosoever in such attempt, obviously using the word in the larger sense, does any act, etc., shall be punishable. The term 'any act' excludes the, notion that the final 16 act short of actual commission is alone punishable."
This Court also referred to certain other decisions and pointed out that any different view expressed has been due to an omission to notice the fact that the provisions of s. 511 differ from the English Law with respect to 'attempt to commit an offence', and that it is not necessary for the offence under s. 511, Indian Penal Code, that the transaction commenced must end in the crime or offence, if not interrupted. This Court finally summarised its views about the construction ofs. 511 thus:
"A person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence, and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission: such an act need not be the penultimate act towards the commission of that offence but must be an -act during the course of committing that offence."
With respect we concur in this view. In the present case the chalan has been prepared and the initials of P.W. 2 obtained. That is most important and crucial step towards cheating. Towards this end both the accused have cooperated. Thereafter it only remained for the appellant Sudhir to affix the stamp and put his signature. Accused Shaw could then have presented it to the company's office and received payment. This is a definite step towards the commission of the offence of 17 cheating though it is not the penultimate step. We hold that the acts of the accused did not stop at the stage of preparation but had reached the stage of attempt. We, therefore, uphold the conviction of the appellants under S. 511 read with S. 420 I.P.C. The appeals are disposed of accordingly.
5.10(c). In State Of Maharashtra vs Mohd. Yakub S/O Abdul Hamid & Ors, AIR 1980 SC 1111, Para-13 is relevant:-
Well then, what is an "attempt" ? Kenny in his 'Outlines of Criminal Law' defined "attempt" to commit a crime as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control." This definition is too narrow. What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be 'criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably 18 proximate to the consummation of the offence. As pointed out in Abhavanand Mishra v. State of Bihar, there is a distinction between 'preparation' and 'attempt'. Attempt begins where preparation ends. In sum, a person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
5.10(d) In Ramkripal Vs. State of M.P., 2007 CRLJ 2302, Para-15 is relevant:-
15. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime.
In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the 19 cases of a mere preparation and an attempt.
5.11. Before proceeding ahead, it would be relevant to revert the scheme of IPC, which reveals that three types of acts are punishable therein. These are preparation to commit offence, attempt to commit offence and commission of offence. It is noticeable that IPC separately prescribes punishment for mere preparation to commit those offence which are of grave nature e.g. offences against the State under Chapter-VI, dacoity. Thereafter, comes the category of offences which are comparatively less grave where not preparation but attempt is independently punishable. Lastly, there are minor offences where the IPC does not independently prescribe punishment for preparation or attempt, but leaves it for each case as per facts and circumstances for the prosecution to allege and Court's to prove an attempt by resorting to the residuary Clause u/S.511 of IPC.
5.12. The offence in question of extortion is a serious offence which is considered to be graver than theft but not as graver as robbery. However, the seriousness of the offence of extortion, is evident from the very fact that attempt to commit extortion is separately punishable u/S.385, 387 and 389 of IPC.
6. Testing the attending factual matrix on the anvil of legal provision and the analysis made (supra), it is seen that charge-sheet reveals that the first two foundational ingredients of extortion i.e. 20 putting the victim/complainant to fear and thereby to induce her/her father to part with property/valuable security are very much alleged. However, the fact remains that the victim and her father who were subjected to fear and inducement did not deliver Rs.20,00,000/- as demanded by the petitioner and other co-accused. Thus, the allegations prima facie reveal satisfaction of the first stage of extortion where all possible steps were taken by petitioner to perpetuate the offence of extortion but the last step of delivery of valuables was not taken by the complainant. This clearly reveals that petitioner had taken all possible steps of instilling fear in the mind of complainant to persuade/induce the victim. This positive overt act of petitioner clearly demonstrate that attempt was made by petitioner to commit extortion.
7. In the conspectus of the discussion supra, this Court is of the considered view that allegation in the charge-sheet spell out prima facie offence punishable under Sec.385 (attempt to extortion) of IPC and not Sec.384 of IPC.
8. Consequently, this Court deems it appropriate to exercise its inherent powers to dispose of the present petition in the following terms:-
1. The impugned prosecution against the petitioner alleges an offence punishable u/S.385 (attempt to extortion) of IPC and therefore, the charge-sheet as impugned herein is sustained 21 but should be treated as alleging offence punishable u/S.385 and not u/S.384 of IPC.
2. The trial Court, to proceed in the trial on the basis of this order.
9. No cost.
(Sheel Nagu)
Ashish Judge
ASHISH
CHOURASIYA
2019.05.07
18:30:38
-07'00'