Allahabad High Court
Kishunlal Alias Kishanlal Prajapati ... vs State Of U.P. And Another on 26 September, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:157960 Court No. - 74 Case :- APPLICATION U/S 482 No. - 13487 of 2024 Applicant :- Kishunlal Alias Kishanlal Prajapati And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Yogesh Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Yogesh Kumar Tiwari, learned counsel for applicants.
2. Learned counsel has rightly pointed out that offence U/s 386 IPC (for extortion) could not be made out against applicants as demanded money was not handed over to applicant and there is no proof of delivery.
3. In support of his submissions, he has placed reliance upon a judgment of this Court in Sanjay Gupta @ Sanju Mohan vs. State of U.P. and another, 2024:AHC:105492, specifically paragraph 9 to 11.
4. I have considered submissions of learned counsel and perused impugned order. For reference, relevant part of it is quoted below -:
???????-13.02. 2024
1. ???????? ???? ???? ???? ???? ??? ????????? ?? ??????? ???????? ?? ???? ??? ????? ???? ?? ???? ?? ???? ???
2. ???????? ?? ??????? ?????
3. ????????? ?? ??????? ???????? ?????? ??? ?? ????? ????????? ????????, ?????, ???, ??????????, ????, ??????, ???????, ??????? ????, ??????, ???????, ????? ??? ??????? ???? ?? ????-395,397,386,307,387 ???????? ?? ????? ?? ?????? ???? ??? ???? ???? ?? ????? ?? ??? ???
4. ????????? ?? ???? ?????? ?? ?????? ??? ????? ?? ???? ????-200 ????????? ??? ?????? ?????????-1 ????? ??? ?????????-2 ????? ?? ???? ????-202 ????????? ?? ??? ???? ????? ??? ???????? ??????? ??? ????????? ????? ?? ????? ??? ???? ??? ????????????? ?? ????? ?? ??? ???? ????? ?? ?? ???
5. ????????? ??????? ?????? ?????? ???????? ?????? ?? ???? ?? ?????? ?? ?? ?????????? ??????-21.02.2022 ?? ??? ?? ???? 7.00 ??? ?????????? ???? ?? ?? ??? ?????????? ?? ????????? ????? ? ?????? ?? ?? ?? ??, ??? ????? ???, ???? ????? ?????? ??? ????? ??????? ??????????, ??????? ????, ??????, ???????, ?????, ??????? ???? ?? ??? ???? ???? ????? ??? ?????, ?????, ????-?????, ????????? ???? ?????????? ?? ?? ??? ??? ?? ??? ???- ??? ?? ??????? ???? ???? ???? ???? ?? ??? ????, ?? ???? ?? ?? ??? ???? ??? ?? ????? ?? ???? ?? ?????????? ?? ????? ?? ???? ?? ????, ????? ?????????? ???-??? ?? ???, ??? ??? ????? ?? ?????????? ?? ???-????? ?? ????? ?? ?? ??? ?? ??? ??? ???? ????? ?? ?????? 500 ?????, ????? ?? ?????? 500 ?????, ?? ???? ?? ??? 2 ???? ??? ?? ??? ??? 15,000/- ????? ??? ??? ????? ?? ????? ??? ????? ??? ??? ??? ??? ??? ?? ????? ?? ???? ???? ??? ?? ??? 15 ??? ?? ????? ???? 15 ??? ????? ???? ????, ?? ???? ????? ?? ?????? ?? ???? ?? ?????, ?????? ??? ????????? ?? ???? ??? ?????????? ?? ??????
6. ????????? ??????? ?????? ?? ???? ???? ????-200 ????????? ??? ??? ?? ?? "???? ??????-21.02.2022 ??? ?? ??? ??? ?? ???? ?? ??? ?? ??? ??? ???? ?? ?? ??? ???? ??? ?? ?? ???? ??????? ????? ? ????? ?? ?? ??? ????????, ?????, ???, ??????????, ????, ??????, ???? ? ???????, ??????, ???????, ???? ? ????? ???? ?? ?? ???? ?? ??? ?? ??? ??? ???? ?? ??? ???? ????????? ???? ???? ????? ?? ????-???? ? ??? ??, ?? ????? ?? ???? ??? ??????? ???? ???? ?? ??? ????? ???? ???? ?? ???? ?? ?? ??? ???? ? ???? ??????? ?? ????? ????? ???? ?? ????? ?? ???-??? ?? ???? ????-???? ??? ??? ????????? ???? ??, ????? ????? ???? ??, ????? ?????? ?? ??? ???? ??? ??, ????? ???? ??? ???? ????? ??? ?????? ???? ???? ??, ?? ???-??? ?? ?????? ?? ??? ??? ?????? ?? ???? ?? ??? ??, ?? ?? ??? ??? ???? ????? ?? ????, ????? ?? ??? ????, ???? ?? ??? ? ??? ??? ????? ???? ??? ???? ??? ????? ?? ??? ???? ??? ?? ????? ?? ???? ???? ??? ??? ??? ?? ???? ??? ?? 15 ??? ??? ???? 15,00,000/- ????? ?? ???? ???? ?? ??????? ??? ??????"
7. ?????? ?????????-1 ????? ??? ?????????-2 ????? ?????? ?? ???? ????-202 ????????? ?? ??????? ??? ?????? ??? ???????? ???? ??????- 21.02.2022 ?? ?????? ???? ???? ??????? ???? ???
8. ????????? ?????? ???????? ?????? ? ???????? ????-200 ??? ????-202 ????????? ?? ????? ???????, ???????? ????????? ?? ????? ??????? ????????? ????????, ?????, ???, ??????????, ????, ????????, ???????, ??????? ????, ??????, ???????, ????? ??? ??????? ???? ?? ????- 395,386 ???????? ?? ????? ?? ?????? ???? ??? ???? ???? ?? ????? ??????? ???????? ???? ??? ???? ?????? ??? ??? ???? ???? ?? ????? ??????? ??? ???????? ???? ?????? ???? ???? ????
5. I have perused the judgment relied by learned counsel for applicants and for reference, its relevant paragraphs are quoted below -:
?9. In order to further appreciate the rival submissions it would be apt to reproduce the relevant part of complaint, statement of Complainant recorded under Section 200 Cr.P.C., statements of witnesses recorded under Sections 202 Cr.P.C. and impugned order, as under:
Relevant part of Complaint:
?4. ?? ?? ???? ?????? 22.05.2022 ??? ???? 3 ??? ??? ?? ??, ???????? ????? ?? ???? ?? ?????? ?? ? ??? ??, ?? ???? ?? ??? ??? ??? ?? ?????? ????? ???? ???? ?????? ?? ???? ?? ?? ???? ??? ??? ?? ??????????? ??? ??? ????, ?? ???????? ?? ?????? ?? ??? ??? ??, ????? ?? ???? ???? ?????? ??? 3 ?????? ??????? ?? ????-???? ????? ??? ????? ???? ??, ?????? ????? ??? ?? ???????? ?????? ???? ??, ????? ?? ???? ?? ???? ???? ?????? ???????? ?? ???? ?? ???? ?????????? ????? ???? ?? ??, ?? ???? ?? ???????? ?????????? ?? ??? ?? ?????? ??, ??? ????? ??? ???? ?? ?? ????? ?? ?????? ?? ??? ?????? ????? ?? ?????, ?? ???????? ?? ??? ?? ???? ?? ??????? ??? ?? ????? ???? ?? ???? ?? ?????? ????? ??? ?? ??? ???? ????? ?????? ?? ????????5 ??? ????? ???? ??????, ???????? ?????? ?????? ???? ?? ??????? ??? ???????? ?? ?????? ?? ???? ????? ???? ?? ???????? ?? ????? ??? ????? ??? ???????? ?????? ???????? ?? ?????? ?? ???? ??? ???? ???? ????? ????? ???? ?????? ??? ?????? ??? ??? ???????? ????? ??????? ?????? ????? ??? ???, ???? ????? ??? ??????? ?? ?? ??? ? ??? ?? ??????? ??? ??? ???????? ?? ????? (????? ?????? ????) ????? ??? ????? ?? ? 5 ??? ????? ???????? ?? ???? ?? ??? ?? ????? ?? ???? ???? ???? ??????????? ??? ????? ??? ????"
Relevant part of statement of Complainant:
"?????? 22.05.2022 ?? ??? ???? 3.00 ??? ??? ??? ??? ????? ?? ?????? ?? ?? ? ??? ?? ??? ??? ?????? ????? ???? ?? ?? ?????????? ??? ??? ???? ?????? ?? ????? ???? ?? ?? ???? ?? ??? ?????? ??? ??? ?????? ??????? ????-???? ????? ??? ????? ???? ???? ?? ???? ?????? ???? ???? ?? ???? ?????????? ????? ??? ?? ?? ?? ?? ???? ???????? ?????? ???? ?? ??? ?? ?????? ?? ??? ????? ??? ???? ??, ?? ??? ??? ?????? ??????? ?? ????? ???? ??? ???? ?? ?? ????? ???? ???? ???? ??? ????? ??? ???? ?? ??? ?? ??? ???? ????? ?????? ?? ???? 05 ??? ????? ???? ??????, ???? ??? ???? ?? ???? ?????? ???? ???? ???? ??? ????? ???? ???? ???????? ?? ?????? ???? ???? ????? ??????? ???? ??? ???????? ????? ??????? ??? ??????? ?? ?? ??? ? ???? ?? ??? ???? ????? ????? ??? ????? ?? ? 5 ??? ????? ???????? ? ???? ?? ??? ?? ????? ?? ???? ???? ???? ???? ??? ????? ??? ???? ?? ??????? ??? ??????? ???? ??? ? ????? ??????? ????? ????? ??? ?? ????????????? ??????? ??? ?? ??????? ?????"
Relevant part of statement of PW-1:
"???? ?????? 22 ?? ??? 2022 ?? ??? ???? 3.00 ??? ??? ?? ?? ?????? ?????? ???????? ?? ????? ???? ??????? ???? ?????? ?? ????? ?? ???? ????? ???? ?????? ?? ???? ?? ?? ??? ?? ??? ?????? ?? ??? ?? ??????????? ??? ???? ??? ?? ???? ?? ???? ?????? ? ??? ?????? ?????? ?? ???? ??? ??? ????? ??? ?? ????? ???? ?????? ?? ???? ??????? ?? ??? ?? ????? ???????? ??? ?? ?? ?????? ???? ?????? ?? ??? ???? ?? ?? ???? ?? ??? ??? ??? ??? ??? ?? ?? ??? ?? ?? ??? ??? ?????? ??? ?? ??? ?????? ???? ?????? ???? ??????? ?? ??? ???? ?? ??? ?? ???? ?? ?? ?????? ??? ??? ????? ??? ?? ?? ???? ?? ??? ???? ????? ????? ?? ?? ???? ??? 500,000 ????? ?? ????? ?? ?? ?????? ???? ??? ?? ?????? ????? ??? ????? ??? ???? ???????? ?? ???? ????? 10-20 ??????? ?? ???? ?????? ?? ?? ??? ????????? ?? ???? ???? ??? ?? ??? ??? 500,000 ???? ?? ????? ???? ???? ?? ??? ?? ??? ????? ?? ??? ????? ??? ????? ??? ???"
Relevant part of statement of PW-2:
"???? ?????? 22/05/2022 ?? ?? ??? ???? 3.00 ??? ??? ?? ???? ?? ?????? ?????? ???????? ?? ????? ???? ??????? ???? ?????? ?? ???? ?? ?? ??? ?? ?? ???? ????? ???? ?????? ?? ?? ??? ?? ??? ?????? ?? ??? ??????????? ??? ???? ??? ?? ???? ?? ???? ?????? ? ??? ?????? ?????? ???? ?? ???? ??? ??? ????? ??? ?? ???? ?????? ?? ???? ??????? ?? ??? ?? ????? ???????? ??? ?? ?? ?????? ???? ????? ?????? ?? ??? ???? ?? ?? ?? ???? ????? ??? ??? ?? ??? ??? ?? ?? ??? ???? ????? ?? ????? ??? ?? ??? ?????? ???? ?????? ???? ?????? ?? ??? ???? ?? ??? ???? ?? ??????? ?????? ??? ??? ????? ?? ??? ?? ?? ???? ??? ???? ????? ????? ?? ?? ???? 5 ??? ????? ?? ????? ?? ?? ?? ?????? ???? ??? ?????? ????? ??? ????? ??? ???????? ?? ???? ????? ???? ?? 10-20 ??? ?????? ?? ?? ?? ??? ????????? ???? ???? ??? ?? ??? ??? 500,000 ?? ????? ???? ???? ?? ????? ??? ????? ?? ????? ??? ????? ??? ???"
Relevant part of impugned order:
"??????? ????????? ???? ?? ???? ??? ?????? ?????? ?? ?????? ? ???????????? ?? ??????? ?? ?????? ?? ?? ??????? ?? ????? (????? ?????? ????) ????? ??? ?????? ?? ??? 5,00,000/- ????? ???????? ? ???? ?? ??? ?? ????? ?? ???? ???? ??? ??? ???? ??? ??????? ?? ?? ?? ???????? ?????? ?????????1 ???????? ? ????????? 2 ???? ???? ?? ??????? ?? ????? ?? ?????? ???? ???
?? ???? ?? ?????? ????? ? ?????? ??? ? ?? ???? ?? ?????? ??????? ?? ???? ?? ???????? ?? ?? ??? ??????? ???? ?????? ???? ???? ???? ?? ??????? ????? ??????? ???? 387 ????????? ?? ????? ???? ???? ???? ???? ??? ????????????? ??????? ???? ?????? ???? ???? ???? ?? ???? 387 ???????? ?? ????? ??? ?????? ???? ???? ???? ???? ?? ???????? ???? ????
(Emphasis supplied)
10. In order to appreciate, whether contents of Section 387 IPC are made out or not, it would be appropriate to reproduce relevant part of judgments passed by Supreme Court in Dhananjay @ Dhandnjay Kumar Singh Vs. State of Bihar and others, (2007)14 SCC 768 and Salib @ Shalu @ Salim vs. State of U.P. and others, 2023 INSC 687:
Dhananjay @ Dhandnjay Kumar Singh (Supra) ?5.Section 384 provides for punishment for extortion. What would be an extortion is provided under Section 383 of the Penal Code in the following terms:
"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'."
6.A bare perusal of the aforementioned provision would demonstrate that the following ingredients would constitute the offence:
1. The accused must put any person in fear of injury to that person or any other person.
2. The putting of a person in such fear must be intentional.
3. The accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security.
4. Such inducement must be done dishonestly.
7. A First Information Report as is well known, must be read in its entirety. It is not in dispute that the parties entered into transactions relating to supply of bags. The fact that some amount was due to the appellant from the First Informant, is not in dispute. The First Information Report itself disclosed that accounts were settled a year prior to the date of incident and the appellant owed a sum of about Rs.400-500 from (sic) Gautam Dubey (sic).
8. According to the said Gautam Dubey, however, a sum of Rs.1500/- only was due to him.
9. It is in the aforementioned premise the allegations that Gautam Dubey and the appellant slapped the first informant and took out Rs.1580/- from his upper pocket must be viewed.
10. No allegation was made that the money was paid by the informant having been put in fear of injury or putting him in such fear by the appellant was intentional.
11. The first informant, admittedly, has also not delivered any property or valuable security to the appellant.
12. A distinction between theft and extortion is well known. Whereas offence of extortion is carried out by overpowering the will of the owner; in commission of an offence of theft the offender's intention is always to take without that person's consent.
13. We, therefore, are of the opinion that having regard to the facts and circumstances of the case, no case under Section 384 of the Penal Code was made out in the first information report."
Salib @ Shalu @ Salim (supra) ?21. ?Extortion? has been defined in Section 383 of the IPC as follows:?
?Section 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.
Illustrations
(a) A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. A has committed extortion.
(b) A threatens Z that he will keep Z's child in wrongful confinement, unless Z will sign and deliver to A a promissory note binding Z to pay certain monies to A. Z sings and delivers the note. A has committed extortion.
(c) A threatens to send club-men to plough up Z's field unless Z will sign and deliver to B a bond binding Z under a penalty to deliver certain produce to B, and thereby induces Z to sign and deliver the bond. A has committed extortion.
(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his seal to a blank paper and deliver it to A. Z sings and delivers the paper to A. Here, as the paper so signed may be converted into a valuable security. A has committed extortion.?
22. So from the aforesaid, it is clear that one of the necessary ingredients of the offence of extortion is that the victim must be induced to deliver to any person any property or valuable security, etc. That is to say, the delivery of the property must be with consent which has been obtained by putting the person in fear of any injury. In contrast to theft, in extortion there is an element of consent, of course, obtained by putting the victim in fear of injury. In extortion, the will of the victim has to be overpowered by putting him or her in fear of injury. Forcibly taking any property will not come under this definition. It has to be shown that the person was induced to part with the property by putting him in fear of injury. The illustrations to the Section given in the IPC make this perfectly clear.
23. In the aforesaid context, we may refer to the following observations made by a Division Bench of the High Court of Patna in Ramyad Singh v. Emperor Criminal Revision No. 125 of 1931 (Pat):-
?If the facts had been that the complainant's thumb had been forcibly seized by one of the petitioners and had been applied to the piece of paper notwithstanding his struggles and protests, then I would agree that there is good ground for saying that the offence committed whatever it may be, was not the offence of extortion because the complainant would not have been induced by the fear of injury but would have simply been the subject of actual physical compulsion.?
It was held:-
?It is clear that this definition makes it necessary for the prosecution to prove that the victims Narain and Sheonandan were put in fear of injury to themselves or to others, and further, were thereby dishonestly induced to deliver papers containing their thumb impressions. The prosecution story in the present case goes no further than that thumb impressions were ?forcibly taken? from them. The details of the forcible taking were apparently not put in evidence. The trial Court speaks of the wrists of the victims being caught and of their thumb impressions being then ?taken? ??. The lower Courts only speak of the forcible taking of the victim's thumb impression; and as this does not necessarily involve inducing the victim to deliver papers with his thumb impressions (papers which could no doubt be converted into valuable securities), I must hold that the offence of extortion is not established.?
24. Thus, it is relevant to note that nowhere the first informant has stated that out of fear, she paid Rs. 10 Lakh to the accused persons. To put it in other words, there is nothing to indicate that there was actual delivery of possession of property (money) by the person put in fear. In the absence of anything to even remotely suggest that the first informant parted with a particular amount after being put to fear of any injury, no offence under Section 386 of the IPC can be said to have been made out.?
(Emphasis supplied)
11. I have carefully perused the contents of complaint, statements recorded under Sections 200 and 202 Cr.P.C. as well as impugned order. As referred in Dhananjay @ Dhandnjay Kumar Singh (supra) and Salib @ Shalu @ Salim (supra), in order to make out a case of extortion, one of the essential ingredient is to deliver any property or valuable security being under threat by Complainant to accused, whereas in the present case such ingredient is absolutely missing as it was not a case of Complainant that he actually handed over Rs. 5 lacs to accused.?
6. In aforesaid submissions, it is evident that learned Magistrate, without considering contents of complaint, statements of complainant and witnesses recorded U/s 200 and 202 Cr.P.C. even in brief, has passed impugned order which is in the teeth of judgment of Supreme Court in Lalankumar Singh and others Vs. State of Maharashtra, (2022) SCC OnLine SC 1383. It is also evident that in statement of complainant and witnesses, ingredients of Section 386 IPC are not shown, therefore, no case is made out U/s 386 IPC.
7. Therefore, this Court is of considered opinion that impugned order dated 13.02.2024 passed by Special Judge (D.A.A.), Jhansi in Complaint Case No. 39/2022 (Smt. Phoolwati vs. Kishunlal and others) U/s 395, 386 IPC, pending before Special Judge (D.A.A.), Jhansi in present form does not survive, hence, set aside.
8. Since this order is passed without issuing notice to opposite party no.2, therefore, this application is disposed of with an observation that matter is remitted back to concerned Court for passing fresh order after hearing rival parties and taking note of judgment of Supreme Court in Lalankumar Singh and Sanjay Gupta @ Sanju Mohan (supras).
9. Registrar (Compliance) to take steps.
Order Date :- 26.9.2024 N. Sinha