Allahabad High Court
Sanjeev Rawat @ Teetu And Another vs State Of U.P. And Another on 18 September, 2023
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:179057 A.F.R. Reserved On: 23.8.2023 Delivered On : 18.9.2023 Case :- APPLICATION U/S 482 No. - 42148 of 2022 Applicant :- Sanjeev Rawat @ Teetu And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shreya Gupta,Shambhavi Sengar Counsel for Opposite Party :- G.A.,Rahul Kumar Sharma,Saurabh Agarwal Hon'ble Neeraj Tiwari,J.
1. Heard Ms. Shreya Gupta, learned counsel for the applicants, learned AGA for the State and Sri Rahul Kumar Sharma, learned counsel for the opposite party no.2.
2. Pleadings have been exchanged between the parties and with the consent of parties, application is being decided at the admission stage itself.
3. Present application has been filed for quashing the impugned orders dated 23.11.2022 & 22.2.2023 passed by Chief Judicial Magistrate, Hathras in Case No. 714 of 2021 (State vs. Ashok Rawat and Another), arising out of Case Crime No. 358 of 2020, under Sections 389, 386, 452, 504, 506 & 507 IPC, Police Station- Kotwali, District- Hathras.
4. Brief facts of the case are that earlier an FIR has been lodged against the applicants on 22.10.2020, which was registered as Case Crime No. 0358 of 2020 under Sections 452, 386, 504, 506 & 507 IPC. During the course of investigation, Investigating Officer has recorded the statement of informant-opposite party no.2 under Section 161 Cr.P.C. on 24.10.2020. Thereafter, I.O. has submitted the charge sheet against the applicants under Sections 386, 389, 452, 504 & 506 IPC. Before framing of charges, applicants have filed discharge application on 10.8.2022, which was rejected vide order dated 23.11.2022 by C.J.M., Hapur. After rejection of discharge application, learned Court has also framed charges under Sections 386, 389, 452, 504, 506 & 507 vide order dated 22.2.2023, which is also under challenged in the present application by filing amendment application. Amendment application was allowed vide order dated 12.4.2023 and same was also incorporated in the said application.
5. Learned counsel for the applicants submitted that for deciding discharge application, it is required on the part of Magistrate to see FIR, Case Diary, Statement recorded under Section 161 Cr.P.C. and Charge Sheet.
6. She next submitted that for submitting the charge sheet under Section 386 read with Section 383 IPC, it is required to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, but in the present case, neither in the FIR nor in the statement recorded under Section 161 Cr.P.C., there is such allegation about the delivery of any valuable property as defined in Section 383 IPC. Therefore, no case is made out under Section 386 IPC. In support of his contention, she has placed reliance upon the judgment of Apex Court as well as judgments of this Court in the cases of Isaac Isanga Musumba and others vs. State of Maharashtra and others reported in (2014) 15 SCC 357, Bhupinder Singh and others vs. State of U.P. and another reported in 2022 1 ACR 816, Mohammad Ubaid vs. State of U.P. passed in Criminal Misc. Bail Application No. 30337 of 2023 on 2.8.2023 and Smt. Laxmi Devi and 3 others vs. State of U.P. and others passed in Application U/S 482 No.5688 of 2018.
7. Learned counsel for the applicants submitted that so far as Section 389 IPC is concerned, there is no allegation of fear of accusation either in the FIR or in the statement recorded under Section 161 Cr.P.C., therefore, no case is also made out under Section 389 IPC.
8. She further submitted that likewise as per FIR as well as statement recorded under Section 161 Cr.P.C., there is no allegation upon the accused-applicant to enter inside the house of the victim, but his presence was only shown at the residence. Therefore, no case is made out under Section 452 IPC.
9. She also submitted that once there is no case is made out under Section 452 IPC certainly no case would also be made out under Section 504, 506 and 507 IPC.
10. She next submitted that Inquiry Officer without properly considering the material available on record has submitted that charge sheet, which is bad and liable to be set aside. In support of his contention he has placed reliance upon the judgment of Gujarat High Court in the matter of Ritaben @ Ramaben W/O Karnabhai Solanki vs. State of Gujarat passed in Criminal Misc. Application No.9885 of 2016
11. Learned counsel for the applicants has also submitted that while deciding the discharge application, learned Magistrate has not properly considered the record of the case, documents and submissions of accused and prosecution. In fact, he fully relied upon the charge sheet submitted by the Investigating Officer and proceeded to reject the discharge application. She reiterated that while deciding discharge application, it is required on the part of the Magistrate not to act as mere post office, but discuss the material available alongwith charge sheet before him. But, in the present case without considering same, rejected the discharge application.
12. She further submitted that after rejecting the discharge application, learned Magistrate proceeded to frame charges vide second impugned order dated 22.2.2023, which is also bad in light of argument made hereinabove as well as law laid down by this Court. In support of his contention he has placed reliance upon the judgment of Apex Court in the cases of Sanjay Kumar Rai vs. State of Uttar Pradesh & Anr. Passed in Criminal Appeal No. 472 of 2021, Sidhique Kappan vs. State of U.P. through Principal Secretary Home Lucknow reported in 2023 0 Supreme (All) 140. Smt. Shila Devi vs. State of U.P. and another passed in Application U/S 482 No. 16386 of 2021 and Captain Manjit Singh Virdi (Retd) vs. Hussain Mohammad Shattaf reported in 2023 0 AIR (SC) 2480.
13. Per Contra, Mr. Rahul Kumar Sharma, learned counsel for the opposite party no.2 has vehemently opposed the submission and submitted that in case any person intentionally puts any person in fear of injury and dishonestly induces the person so put in fear to deliver to any person any property, which amounts to extortion, therefore, charge sheet has rightly been submitted under Section 386 IPC and accordingly charges were also framed therein.
14. Mr. Rahul Kumar Sharma, learned counsel for the opposite party no.2 about Section 452 IPC firmly submitted that at the home or inside the home is having no difference. It is nothing but misinterpretation of words and it is undisputed from the FIR as well as statement recorded under Section 161 Cr.P.C, accused persons have visited the house of informant and they threatened and abused the victim at there, which is sufficient enough for submitting charge sheet under Sections 452, 504, 506 & 507 IPC.
15. Learned counsel for the opposite party no.2 has also opposed the argument made by the learned counsel for the applicants about the Sections 386 & 389 IPC, but from the records, could not demonstrate as to how case is made out under Sections 386 & 389 IPC.
16. Learned AGA for the State has also adopted the argument made by the learned counsel for the opposite party no.2.
17. I have considered the rivals submissions advanced by the learned counsel for the parties and perused the record as well as judgments relied upon.
18. The issue before this Court is to decide as to whether from perusal of FIR as well as statement recorded under Section 161 Cr.P.C., any charge is made out under Sections 386, 389, 452, 504, 506 & 507 IPC or not.
19. First of all, Court has to see about the ingredients of Section 386 read with Section 383 IPC are available in present case or not upon which charge sheet has been submitted and charges have also been framed therein.
20. To appreciate the controversy, Sections 383 and 386 IPC are quoted herebelow:-
"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".
386. 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."
21. From perusal of the aforesaid sections, it is apparently clear that for extortion, delivery is necessary part and in the present case, there is no allegation either in the FIR or in the statement recorded under Section 161 Cr.P.C. about delivery of any property or any other things as referred in Section 383 IPC.
22. This issue was before the Apex Court in the matter of Isaac Isanga Musumba (Supra) wherein Court has held that unless property is delivered to the accused person pursuant to the threat, no offence of extortion is made out. Relevant paragraph of the said judgment is quoted hereinbelow:-
"3. We have read the FIR which has been annexed to the writ petition as Annexure P-7 and we find therefrom that the complainants have alleged that the accused persons have shown copies of international warrants issued against the complainants by the Ugandan Court and letters written by Uganda Ministry of Justice & Constitutional Affairs and the accused have threatened to extort 20 million dollars (equivalent to Rs.110 crores). In the complaint, there is no mention whatsoever that pursuant to the demands made by the accused, any amount was delivered to the accused by the complainants. If that be so, we fail to see as to how an offence of extortion as defined in Section 383, IPC is made out.
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'.
Hence, unless property is delivered to the accused person pursuant to the threat, no offence of extortion is made out and an FIR for the offence under Section 384 could not have been registered by the police."
23. Similar matter was also come up before this Court in the matter of Bhupinder Singh (Supra) wherein Court after considering the provision of Section 389 IPC in detail, held that ingredients of Section 386 IPC is not fulfilled, therefore, no case is made out under Section 386 IPC. Relevant paragraph of the said judgment are quoted hereinbelow:-
"10. He further submits that no offence under Sections 386, 506 IPC is made out against the applicants and learned Magistrate has committed grave error in summoning the applicants to face the trial under the aforesaid sections.
11. The submissions of the learned counsel for the applicants may be summed up as under:
(1) No offence under Sections 386, 506 IPC can be said to be made out from the allegations made under the complaint.
(2) The complainant has prima facie failed to demonstrate that the elements of Section 383 IPC are available to maintain the criminal complaint.
(3) The Courts below i.e. the learned Magistrate as also the Revisional Court failed in its duty to ascertain that all elements provided for in Section 383 IPC were available and attracted in order to maintain the criminal complaint.
12. In order to appreciate the submissions of the learned counsel for the applicants, it would be apt to consider the provisions of Sections 386, 506 I.PC. Section 386 IPC provides for punishment for extortion by putting a person in fear of death or grievous hurt. What would constitute extortion is provided under Section 383 of the Indian Penal Code, which reads as under:
"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"."
13. 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.
Section 386 IPC reads as under:
"386. 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 to that person tor 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."
14. It would also be appropriate to understand the words "Valuable and Security" appearing in Section 383 IPC.
15. The term "Valuable as defined in Blacks' Law Dictionary means-Worth a good price, having financial as market value. The term "Security" as defined in the Dictionary means:-
1. Collateral given or pledged to guarantee the fulfillment of an obligations; esp. the assurance that a creditor will be repaid (sus. With interest) any money or credit extended to a debtor. 2. A person who is bound by some type of guarantee; SURETY. 3. The stat of being secure, esp. from danger or attack. 4. An instrument that evidences the holder's on an investment in a common enterprise. Under an important statutory definition, a security is any interest or instrument relating to finances, including a note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in a profit sharing agreement, collateral trust certificate, reorganization certificate or subscription, transferable share, investment contract, voting trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of these things. A security also includes any put, call, straddle, option, or privilege on any security, certificate of deposit, group or index of securities, or any such device entered into on a national securities exchange, relating to foreign currency. 15 USCA {77b(1) Cf. SHARE(2); stock (4).
16. Now, having regard to the facts and circumstances of the case, the Court is of the opinion that no case under Section 386 IPC can be said to be made out against the applicants from the allegations set out in the criminal complaint lodged against them. The reasons for the same are as under:-
(1) The blank papers allegedly got signed by the applicants from the complainant were never converted into a valuable security. The said blank papers were never used before the Presiding Officer, Labour Court, Ludhiana. There is no allegation in this regard in the complaint or in the statements recorded under Sections 200 and 202 Cr.P.C.
(2) The records reveal that the case before the Labour Court, Ludhiana is Reference No.1396 was got instituted on 27.08.2002 much after the lodging of the complaint on 07.01.2002. On the date of institution of the complainant i.e. on 07.01.2002 there was no proceedings pending before the Labour Court, Ludhiana, where the signed papers could be utilized. Moreover, the proceedings before the Labour Court, Ludhiana were not pressed on the statement of the authorized representative of the workman/ Opposite Party No.2 to the effect that he does not press the reference for the time being on account of technical error i.e. wrong name of the opposite party and he reserved the right to file fresh dispute after rectifying the error. The reference was answered accordingly with observation that the workman will be at liberty to file fresh dispute after rectifying the error if he so desired vide order dated 02.06.2005 which has been filed on record by th386. 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.e applicants.
(3) The Opposite Party No.2/Complainant has miserably failed to demonstrate that ingredients of Section 383 IPC are available in the complaint so instituted so as to warrant criminal prosecution of the applicants under Section 386 IPC.
(4) The factum that after withdrawal of the case before the Labour Court, Ludhiana no fresh claim was instituted despite liberty having been granted to the Opposite Party No.2 goes a long way in establishing the falsity of the case against the applicants. The criminal complaint against the applicants can safely be said to have been instituted maliciously with ulterior motive and as such is frivolous, vexatious or oppressive and is an abuse of the process of the Court.
(5) The allegations in the complaint regarding criminal intimidation at the instance of the applicants have been made only to add colour to the complaint. The alleged occurrence of the incident appears to be improbable in the wake of the allegations set out in the complaint. No offence under Section 506 IPC can be said to be made out against the applicants. ownership right to firm (e.g. a stock), the holder's creditor relationship with a firm or Government (e.g. a bond). *A security indicates an interest based on an investment in a common enterprise. Under an important statutory definition, a security is any interest or instrument relating to finances, including a note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in a profit sharing agreement, collateral trust certificate, reorganization certificate or subscription, transferable share, investment contract, voting trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of these things. A security also includes any put, call, straddle, option, or privilege on any security, certificate of deposit, group or index of securities, or any such device entered into on a national securities exchange, relating to foreign currency. 15 USCA {77b(1) Cf. SHARE(2); stock (4).
16. Now, having regard to the facts and circumstances of the case, the Court is of the opinion that no case under Section 386 IPC can be said to be made out against the applicants from the allegations set out in the criminal complaint lodged against them. The reasons for the same are as under:-
(1) The blank papers allegedly got signed by the applicants from the complainant were never converted into a valuable security. The said blank papers were never used before the Presiding Officer, Labour Court, Ludhiana. There is no allegation in this regard in the complaint or in the statements recorded under Sections 200 and 202 Cr.P.C.
(2) The records reveal that the case before the Labour Court, Ludhiana is Reference No.1396 was got instituted on 27.08.2002 much after the lodging of the complaint on 07.01.2002. On the date of institution of the complainant i.e. on 07.01.2002 there was no proceedings pending before the Labour Court, Ludhiana, where the signed papers could be utilized. Moreover, the proceedings before the Labour Court, Ludhiana were not pressed on the statement of the authorized representative of the workman/ Opposite Party No.2 to the effect that he does not press the reference for the time being on account of technical error i.e. wrong name of the opposite party and he reserved the right to file fresh dispute after rectifying the error. The reference was answered accordingly with observation that the workman will be at liberty to file fresh dispute after rectifying the error if he so desired vide order dated 02.06.2005 which has been filed on record by the applicants.
(3) The Opposite Party No.2/Complainant has miserably failed to demonstrate that ingredients of Section 383 IPC are available in the complaint so instituted so as to warrant criminal prosecution of the applicants under Section 386 IPC.
(4) The factum that after withdrawal of the case before the Labour Court, Ludhiana no fresh claim was instituted despite liberty having been granted to the Opposite Party No.2 goes a long way in establishing the falsity of the case against the applicants. The criminal complaint against the applicants can safely be said to have been instituted maliciously with ulterior motive and as such is frivolous, vexatious or oppressive and is an abuse of the process of the Court.
(5) The allegations in the complaint regarding criminal intimidation at the instance of the applicants have been made only to add colour to the complaint. The alleged occurrence of the incident appears to be improbable in the wake of the allegations set out in the complaint. No offence under Section 506 IPC can be said to be made out against the applicants.
24. This issue was again come before this Court in the matter of Mohammad Ubaid (Supra) wherein Court has also taken the same view. Relevant paragraph of the said judgments are quoted hereinbelow:-
"15. It is to be seen that in the present case, allegation in the FIR are with regard to demand of money by way of extortion for sum of Rs.2 crore from a Village Pradhan. The applicant also contested the election of Village Pradhan against informant and after election were over, present FIR has been lodged for demand of Rs.2 crore, which is alleged by the prosecution to be extortion. The extortion has been defined in Section 383 IPC, which is reproduced hereinbelow:
"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"."
16. Under Section 383 IPC, one of the essential ingredient is that to deliver to any person any property or valuable security or anything signed or sealed, which may be converted into valuable security.
17. The Apex Court in Isaac Isanga Musumba and others Vs. State of Maharashtra, 2014 (15) SCC 357 has held that "
"3. We have read the FIR which has been annexed to the writ petition as Annexure P-7 and we find therefrom that the complainants have alleged that the accused persons have shown copies of international warrants issued against the complainants by the Ugandan Court and letters written by Uganda Ministry of Justice & Constitutional Affairs and the accused have threatened to extort 20 million dollars (equivalent to Rs.110 crores). In the complaint, there is no mention whatsoever that pursuant to the demands made by the accused, any amount was delivered to the accused by the complainants. If that be so, we fail to see as to how an offence of extortion as defined in Section 383 IPC is made out. Section 383 IPC states that "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'. "
Hence, unless property is delivered to the accused person pursuant to the threat, no offence of extortion is made out and an FIR for the offence under Section 384 could not have been registered by the police."
25. Similar matter was also come before this Court in the matter of Laxmi Devi (Supra). Relevant paragraph of the said judgments are quoted hereinbelow:-
8. अब न्यायालय को यह निर्धारित करना है कि अवर न्यायालय द्वारा आवेदकगण के विरुद्ध आदेशिका पारित करने में कोई वैधानिक त्रुटि हुई है या नहीं। इसके लिए सर्वप्रथम धारा 383, 384, 385 व 506 भा0दं0सं0 का उल्लेख करना आवश्यक है जो निम्न है।
"383. उद्दापन- जो कोई किसी व्यक्ति को स्वयं उस व्यक्ति को या किसी अन्य व्यक्ति को कोई क्षति करने के भय में साशय डालता है, और तद्द्वारा इस प्रकार भय में डाले गए व्यक्ति को, कोई सम्पत्ति या मूल्यवान प्रतिभूति या हस्ताक्षरित या मुद्रांकित कोई चीज जिसे मूल्यवान प्रतिभूति में परिवर्तित किया जा सके, किसी व्यक्ति को परिदत्त करने के लिए बेईमानी से उत्प्रेरित करता है, वह "उद्दापन" करता है।
384. उद्दापन के लिए दण्ड- जो कोई उद्दापन करेगा वह दोनों में से किसी भांति के कारावास से, जिसकी अवधि तीन वर्ष तक की हो सकेगी, या जुर्माने से, या दोनों से, दण्डित किया जायेगा।
385. उद्दापन करने के लिए किसी व्यक्ति को क्षति के भय में डालना- जो कोई उद्दापन करने के लिए किसी व्यक्ति को किसी क्षति के पहुँचाने के भय में डालेगा या भय में डालने का प्रयत्न करेगा, वह दोनों में से किसी भांति के कारावास से, जिसकी अवधि दो वर्ष तक की हो सकेगी, या जुर्माने से, या दोनों से, दण्डित किया जायेगा।
506. आपराधिक अभित्रास के लिए दण्ड- जो कोई आपराधिक अभित्रास का अपराध करेगा, वह दोनों में से किसी भांति के कारावास से, जिसकी अवधि दो वर्ष तक की हो सकेगी, या जुर्माने से, या दोनों से, दण्डित किया जाएगा।
यदि धमकी मृत्यु या घोर उपहति इत्यादि कारित करने की हो- तथा यदि धमकी मृत्यु या घोर उपहति कारित करने की, या अग्नि द्वारा किसी सम्पत्ति का नाश कारित करने की या मृत्यु दण्ड से या आजीवन कारावास से, या सात वर्ष की अवधि तक के कारावास से दण्डनीय अपराध कारित करने की, या किसी स्त्री पर अस्तित्व का लांछन लगाने की हो, तो वह दोनों में से किसी भांति के कारावास से, जिसकी अवधि सात वर्ष तक की हो सकेगी, या जुर्माने से, या दोनों से, दण्डित किया जायेगा।"
9. धारा 383 भा0दं0सं0 में उद्दापन के अपराध का विवरण दिया गया है, जिसके अनुसार इस अपराध के आवश्यक अवयव हैं:- (I) अपराधी, किसी व्यक्ति को स्वयं उस व्यक्ति को या अन्य व्यक्ति को कोई क्षति करने के भय में डालता है। (ii) क्षति करने का भय साशय हो, (iii) अपराधी उस भय में डाले गये व्यक्ति को कोई संपत्ति या मूल्यवान या हस्ताक्षरित या मुद्रांकित कोई चीज जिसे मूल्यवान प्रतिभूति में परिवर्तित किया जा सके, किसी व्यक्ति को परिदत्त करने के लिए बेइमानी से उत्प्रेरित करे।
10. उच्चतम न्यायालय ने इसाक इसांगा मुसुम्बा व अन्य प्रति महाराष्ट्र शासन व अन्य : (2014) 15 एस.सी.सी. 357 के मामले में उद्दापन के अवयव पर विचार किया और यह अवधारित किया कि जब तक अपराधी द्वारा उसको या अन्य व्यक्ति को साशय क्षति पहुँचाने के भय के कारण व उसके द्वारा बेइमानी से उत्प्रेरित होकर कोई संपत्ति या मूल्यवान या हस्ताक्षरित या मुद्रांकित कोई चीज, जिसे मूल्यवान प्रतिभूति में परिवर्तित किया जा सके, किसी व्यक्ति को प्रदान न हो गयी हो, तब तक उद्दापन का अपराध पूर्ण नहीं हो सकता है।
11. वर्तमान प्रकरण में अविवादित रुप से मृतका ने अपनी माता (आवेदक सं0 1) से क्रय की गयी भूमि को वापस नहीं किया है, जो आपराधिक परिवाद व धारा 200 व 202 दं0प्र0सं0 के अंतर्गत दर्ज ब्यानों के परिशीलन से भी पूर्ण रुप से परिलक्षित होता है। अतः वर्तमान प्रकरण में उद्दापन के समस्त अवयव, प्रथम दृष्टया भी पूर्ण नहीं होते हैं। अतः वर्तमान प्रकरण में उद्दापन (धारा 383 भा0दं0 सं0) का कोई अपराध प्रथम दृष्टया भी नहीं प्रकट होता है। अतः उसे धारा 384 भा0दं0सं0 के अन्तर्गत सजा होने के भी प्रथम दृष्ट्या मामला नहीं बनता है।
12. अब न्यायालय को यह देखना है क्या धारा 385 भा0दं0सं0 (उद्दापन करने के लिए किसी व्यक्ति को क्षति के भय में डालना) का अपराध क्या पत्रावली पर उपस्थित आपराधिक परिवाद, धारा 200 व 202 दं0प्र0सं0 के ब्यान के मद्देनजर प्रथम दृष्टया बनता है या नहीं। आपराधिक परिवाद व वादी व गवाहों के ब्यानों में यह कथन किया गया है कि आवेदकगण वादी की पत्नी पर जमीन पुनः उनके नाम करने का दबाव देने लगे और मानसिक व शारीरिक रुप से उसको प्रताड़ित करने लगे।
13. धारा 385 के अवयव उद्दापन का प्रयास करते हुए किसी व्यक्ति को किसी क्षति के भय में डालने या डालने का प्रयत्न करने का अपराध को वर्णित करते हैं। वर्तमान प्रकरण में आपराधिक परिवाद, धारा 200 व 202 दं0प्र0सं0 के ब्यानों से प्रथम दृष्टया वादी की पत्नी को उद्दापन करने का प्रयास करते हुए उसको मानसिक व शारीरिक प्रताड़ना पहुँचाना कहा गया है। परन्तु इस नाते कैसे उसको भय में डालने या डालने का प्रयत्न करने का कोई विनिष्ठ साक्ष्य या कथन पत्रावली पर उपस्थित नहीं है और न ही यह कथन किया गया है कि क्या मानसिक या क्या शारीरिक प्रताड़ना पहुंचायी गई थी। अतः वर्तमान प्रकरण में धारा 385 भा0दं0 सं0 के अवयव प्रथम दृष्टया उपस्थित न होने के कारण इस अपराध के कारित होने का मामला भी नहीं बनता है। इसी प्रकार धारा 506 भा0दं0सं0 के भी अवयव भी उपस्थित न होने के कारण भी उस अपराध के घटित होने का प्रथम दृष्टया मामला नहीं बनता है।
26. In the present case too, there is no allegation either in the FIR or in the statement recorded under Section 161 Cr.P.C. about the delivery of any property as referred in Section 383 IPC. Undisputedly no delivery has ever taken place under fear or threat, which is necessary requirement for Section 383 read with Section 386 IPC. The very same interpretation has been made by the Apex Court in the matter of Isaac Isanga Musumba (Supra) as well as other judgments referred hereinabove. Therefore, in light of facts of the case, provisions of Section 383 read with Section 386 IPC, this Court is of the firm view that no case is made out for submission of charge sheet and framing charges under Section 386 IPC.
27. Now coming to submission of charge sheet under Section 389 IPC as well as framing of charges under Section 389 IPC.
28. Section 389 IPC is relevant to appreciate the controversy and same is being quoted hereinbelow:-
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 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 [imprisonment of life].
29. From perusal of Section 389 IPC, it is apparently clear that there must have been fear of accusation of offence to commit extortion, but from perusal of FIR as well as statement recorded under Section 161 Cr.P.C., there is no allegation like this in the present case.
30. This matter was very well considered by the Gujarat High Court in the case of Ritaben @ Ramaben W/O Karnabhai Solanki (Supra). Relevant paragraphs of the said judgment are quoted hereinbelow:-
9.3 Now, I shall make an endeavor to examine whether the offence under section 389 of IPC has been made out against the applicants.
SECTION 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 imprisonment for life, or with imprisonment for a term which may 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 imprisonment for life.
The reading of the provisions of section 389 reveals the following ingredients:
a) In order to commit extortion, a person is put or an attempt is made to put him in fear of an accusation.
b) Such fear is due to an accusation of an offence or attempt to commit such offence.
c) The offence being punishable with death, imprisonment for life or for a term extending to ten years.
9.4 In the present case, there is no accusation alleged to have been made by the petitioners to the first informant accusing him an offence being punishable with death, imprisonment for life or for a term extending to ten years. The contents of the FIR are blissfully silent on any of the offences which attract the aforenoted punishments. Hence, no offence can be said to have been established under section 389 of IPC.
31. From perusal of FIR as well as statement recorded under Section 161 Cr.P.C., there is no allegation of accusation of offence. Therefore, considering the facts of the case, provision of Section 389 IPC as well as interpretation made by the Gujarat High Court, this Court is of firm view that in lack of fear of accusation of offence, neither charge sheet can be submitted under Section 389 IPC nor charges can be framed therein.
32. Now coming to the point about the submission of charge sheet under Sections 452, 504, 506 & 507 IPC and framing of charges therein. From perusal of FIR as well as statement recorded under Section 161 Cr.P.C., there is direct allegation of presence of accused at the residence of opposite party no.2 alongwith threat and abuse. Defence of accused cannot be seen at this stage, therefore, I found no illegality in submission of charge sheet under Sections 452, 504 & 506 IPC as well as framing of charges therein.
33. The another aspect was about the approach of Court while dealing discharge application. This issue was very well settled by the Apex Court in the matter of Sanjay Kumar Rai (Supra). Relevant paragraph of the said judgment are quoted hereinbelow:-
15. The correct position of law as laid down in Madhu Limaye (supra), 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) of 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.
16. 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 Samal5]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.
17. This brings us to the present case wherein the High Court has not gone into the merits of the case and did not analyze the case in light of the settled law referred to above.
18. 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 and remand the case back to the High Court for its reconsideration in accordance with law.
34. The similar view is taken by this Court in the matter of Sidhique Kappan (Supra). Relevant paragraph of the said judgment are quoted hereinbelow:-
14. Since, the provision of Section 227 of Cr.P.C. itself mandates that the trial court shall consider that whether there is sufficient ground for proceeding against the accused or not and if trial court reaches to the conclusion that there is no sufficient ground, the accused shall be discharged. Section 227 of Cr.P.C. is extracted hereinunder :-
"227.If, upon consideration of the record of the case and the documents submitted therewith, and after hearing submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
15. Having at a glace of the aforesaid provisions, it is crystal clear that while passing an order in abovesaid provisions, the trial court shall consider ;-
First, the record of the case and documents submitted therewith;
Secondly submissions of the accused and thirdly the submisisons of the prosecution.
16. It is settled law that even after such considerations, two view are possible and if one of them gives rise to the suspicion, which is distinguished from grave suspicion, the trial Judge is empowered to discharge the accused without going into the question as to whether a case for trial has been made out by the prosecution or not.
17. This court is of considered opinion that after the application of judicial mind on discharge, the trial Judge shall enter into the next proceeding i.e. framing of the Charge. It is prima-facie overt from the wordings of Section 228 of Cr.P.C. i.e. "Framing of Charge" and "if, after such consideration and hearing, as aforesaid", the procedure of Section 227 of Cr.P.C. is of much importance and that cannot be skipped by the trial court. The intent of the legislature is very clear that the procedure prescribed in Section 227 of Cr.P.C. for discharge of the accused is in fact safeguard and rider so that a person who has been alleged to commit an offence, may not be harassed for facing trial proceedings. Therefore, the application of mind as well as assigning reasons for passing the order under section 227 of Cr.P.C. is of much importance, which has to care of by the trial court.
18. Further it is also not incumbent upon the accused that he must have moved an application for discharge. Even in a situation that there was no application for discharge moved, then it is incumbent upon the trial court to decide it that whether there is sufficient material available against the accused so as to frame charges,but opportunity of hearing to the accused at this stage is an essential condition.
35. This Court has again taken the same view in the matter of Smt. Shila Devi (Supra). Relevant paragraph of the said judgment are quoted hereinbelow:-
12. In view of the aforesaid discussion, now I have to see whether the order passed by the court below is against law or whether the court below discussed merit of the case by applying its mind. I have gone through the judgment of lower court and there is no discussion of the evidences on record and material which are placed before the court below are not discussed. Once the court below is forming opinion for deciding the discharge application, it has to discuss the material of the charge sheet available before him but bare perusal of the order of the court below would indicate that case laws has been discussed and the facts narrated by the parties have been recorded but while taking the decision courts below have not taken note of the facts and material available on record. The said aspect is dealt in various judgment of Hon'ble Supreme Court. The Supreme Court has held in State of Karanataka Vs. Muniswamy and others (1997) 2 SCC 699 that court while deciding discharge application has to record its reasons while rejecting the discharge application perusal of record and reasons to be recorded are must. Para 7 of the aforesaid judgment is herein under :
"The second limb of Mr. Mookerjee's argument is that I any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So long as there is sme material on the record to connect the accused with the crime, says the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is not lively to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that :
If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is not sufficient ground for proceeding against the accused, the shall discharge the accused and record his reasons for so doing.
This section is contained in Chapter XVII called "Trial Before a Court of Session". It is clear from the provision that the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of New Code, which corresponds to Section 561-A of the Code of 1898, provides that :
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
13. Hon'ble Supreme Court has again discussed the scope of 227 and 228 Cr.P.C. in Sunil Kumar Jha and Others Vs. State of Bihar in Crl. Misc. Case No. 22050 of 1996 decided on 5.2.1997. Para 6 is herein under :
"From bare perusal and comparison of the aforesaid two provisions it appears that while in the case of discharge of an accused under Section 227 of the Code it is obligatory for the Judge to record his reasons for doing so. But while framing charge under Section 228 of the Code the provision does not say in a very specific word that the Court msut record reasons. Nevertheless Section 228 provides that while framing charge, the Court must be of the opinion that there is ground for presuming that the accused has committed an offence. In other words, there must be valid reasons and foundation for framing an opinion that the accused has committed an offence."
14. The case decided by Allahabad High Court in Smt. Kalawati Vs. State of U.P. decided on 11.7.1990 passed in Crl. Revision No. 1012 of 1990 wherein it has been held that though the full statements of the witnesses need not be discussed but prima facie case should be briefly indicated. Para 3 is herein under :
"It is true that for determining prima facie case court need not weigh or sift the evidence or make roving enquiry. It need not give full statements of the witnesses. Evidently for a judicial speaking order it is necessary that the evidence constituting prima facie case should be briefly indicated and should not be substituted by vague words or by conclusion alone."
15. The court has to see whether the material placed before the court have been properly explained. If there are two views emerging then the court has to examine discharge application filed under Section 227 Cr.P.C. by discussing the evidences on record and then forming the opinion to pass order on the application. Both courts below have not discussed the evidences and material available before them and reasons have not been recorded. The order passed by the Sessions Court dated 16.3.2021 in Crl. Case No. 340 of 2019 (State Vs. Asha Rani and others) in Crl. Revision No. 27 of 2020 and the judgment and order dated 21.9.2019 passed by Judicial Magistrate, Chakia, District- Chandauli are set-aside.
36. Again, Apex Court in the matter of Captain Manjit Singh (Supra) reiterated the same view and relevant paragraph of the same is quoted hereinbelow;
11. The law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of charge sheet, application for discharge was filed. The settled proposition of law is that at the stage of hearing on the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused person. Interference of this Court at that stage is required only if there is strong reason to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court.
37. Now coming to this case. It is apparently clear that while deciding the discharge application trial Court has not followed the settled ratio of law laid down by the Apex Court as well as this Court. In fact, Court blindly relying upon the charge sheet submitted by I.O. rejected the discharge application and framed charges thereafter. As discussed hereinabove, treating the allegation in FIR as well as statement recorded under Section 161 Cr.P.C. is correct, no case is made out under Sections 386 & 389 IPC, but trial Court functioning like a post office accepted the charge sheet and treating the version true, rejected the discharge application. Thereafter proceeded to frame charges also in the same sections. In fact, approach of trial Court suffers non application of judicial view settled by the Apex Court as well as different Courts. In a very casual manner vide impugned orders dated 23.11.2022 & 22.2.2023 discharge application has been rejected and charges have been framed, which cannot be sustained.
38. Therefore, in light of factual and legal discussions made hereinabove, application is partly allowed. Impugned orders dated 23.11.2022 & 22.2.2023 passed by Chief Judicial Magistrate, Hathras so far it relates to rejection of discharge application for Section 386 & 389 IPC as well as framing charges under Section 386 & 389 IPC are hereby quashed.
39. For remaining sections i.e., Sections 452, 504, 506 & 507 IPC, this Court found no illegality in rejecting the discharge application and framing charges. Further, court is directed to proceed to decide the case strictly in accordance with law.
40. No order as to costs.
Order Date :- 18.9.2023 Junaid