Madhya Pradesh High Court
A.B.Dubey vs Station House Officer on 12 January, 2024
M.Cr.C. No.9857/2016
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
ON THE 12TH OF JANUARY, 2024
M.Cr.C. No. 9857 OF 2016
BETWEEN:-
A.B. DUBEY, AGED ABOUT 47 YEARS, S/O SHRI LATE
SHRI G.S. DUBEY, R/O M.I.G. 138, 'D' SECTOR,
AYODHYA NAGAR, BHOPAL (MP)
....APPLICANT
(BY SHRI ANIL KHARE, SENIOR ADVOCATE WITH
SHRI SAHIL SHARMA - ADVOCATE)
AND
1. STATION HOUSE OFFICER, POLICE STATION,
HABIBGANJ, BHOPAL (MP)
2. SMT. LEENA KOSHTA, W/O SHRI AJAY
KOSHTA, PRESENTLY POSTED AS JAIL
SUPERINTENDENT, VIDISHA, DISTRICT
VIDISHA, R/O F-9/31, CHAR IMLI, BHOPAL (MP)
....RESPONDENTS
(BY SHRI SANJEEV SINGH PARIHAR - PANEL
LAWYER FOR RESPONDENT NO.1/STATE AND
M.Cr.C. No.9857/2016
2
SHRI S.N. VISHWAKARMA - ADVOCATE FOR
RESPONDENT NO. 2)
Reserved on : 09-01-2024
Pronounced on : 12-01-2024
ORDER
Vide this common order, both MCRC No.9857/2016 and MCRC No.40945/2018 are being disposed of. Since both the cases have arisen from common cause of action, therefore, facts are being culled out from MCRC No. 9857/2016.
2. The applicant has preferred this petition under Section 482 Cr.P.C. for quashing of FIR No.514/2015 dated 04.08.2015 registered at Police Station Habibganj, District Bhopal and all the subsequent proceedings undertaken pursuant thereto including filing of report under Section 173 Cr.P.C. After filing of challan before the Judicial Magistrate First Class, Bhopal, cognizance has been taken by the Court by registering RT No.1974/2016 but charges have not been framed so far as communicated by the learned counsel for the applicant on verification from his client. A perusal of the record would indicate that vide order dated 13.01.2017, further proceedings in RT No.1974/2016 pending before the J.M.F.C., Bhopal were stayed till the next date of hearing. The said interim relief remained in operation subsequently also. Ultimately, the interim order was vacated vide M.Cr.C. No.9857/2016 3 order dated 07.12.2023 and the trial Court was directed to proceed with the matter.
With reference to the e-court services, learned counsel for the applicant has informed the Court that charges have not been framed so far and the case is listed before the trial Court for 20.01.2024. With the concurrence of the learned counsel for the parties, this Court proceeded to take up the matter on merits.
3. The FIR in question has been registered by the respondent No.1 for the offence under Sections 384, 354-D, 507/34 of Indian Penal Code with the allegations that on 02.07.2015 and 03.07.2015, the complainant was present at her house. A telephone call came from Moolchand Raikwar and he gave threat to the complainant in connection of her forged caste certificate and also demanded money from her. He asked her to meet him. For the last one week, Moolchand Raikwar and A.B. Dubey, Advocate, have been giving threats and are blackmailing the complainant. The companion of Moolchand Raikwar has been described by Moolchand Raikwar as Achal B. Dubey who is an Advocate by profession. He also gave threats and black mailed the complainant on phone of Moolchand Raikwar. Some of the calls have been recorded by the complainant which she will produce before the police. Moolchand Raikwar and his companion have made many calls and compelled the complainant to come to Vallabh Bhawan, Bhopal. On 04.07.2015, the M.Cr.C. No.9857/2016 4 complainant went to Vallabh Bhawan in the evening. There, Moolchand Raikwar himself came down after obtaining entry pass and took her to his branch where Advocate Dubey was already present. Both of them started indecent and filthy talks with the complainant and started saying that the figure of the complainant is good and she did not appear to be the mother of a child. When the complainant objected to the same, then Moolchand Raikwar and the Advocate Dubey started threatening her and also started demanding money in connection to validity of her caste certificate. The complainant got frightened and came down from Vallabh Bhawan and thereafter, narrated the story to Sameer Tiwari who had gone along with her. The complainant did not report the matter due to her honor. Now, both the persons have been making repeated calls and are compelling the complainant to pay an amount of Rs.3,00,000/- (Rs. Three Lakhs). The complainant told them that the department would be free to take any action in the enquiry and they should not harass her unnecessarily. On this, they gave threats of spoiling the service prospects of the complainant. On the mobile of the complainant bearing no.9425693615, many calls have been received from the mobile numbers - 9575881276, 8435591995 and 88899511298. They have demanded money from the complainant and also threatened to send her to jail. The complainant is a Jail Superintendent and the accused are professionals and shrewd M.Cr.C. No.9857/2016 5 persons. The complainant got frightened as these persons, in connivance with some antisocial elements, may commit some scandalous act or even may attack the complainant. With these allegations, the FIR came to be registered on 04.08.2015.
4. After investigation of the case, the challan has been submitted to the Court for the offence under Sections 384, 354-D, 507/34 of Indian Penal Code against the applicant and co-accused Moolchand Raikwar. The learned counsel for the applicant submitted that even if the allegations are taken to be correct on the face of the record, no offence is made out. Learned counsel for the applicant submits that in order to constitute an offence under Section 384 of IPC, there has to be some allegation that pursuant to the demand made by the accused, any amount has also been delivered to the accused by the complainant. In absence of any such allegations, the offence of extortion in terms of Section 383 IPC is not made out. Extortion has been defined under Section 383 IPC which means -
"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".M.Cr.C. No.9857/2016 6
A perusal of the aforesaid, would indicate that unless property is delivered to the accused persons pursuant to threat, no offence of extortion is made out and the FIR for the offence under Section 384 IPC could not have been registered by the Police. In support of his contention, learned counsel for the applicant has placed reliance upon (2014) 15 SCC 357 titled Isaac Isanga Musumba and Others vs. State of Maharashtra and others. In the aforesaid judgment, it has been clearly stated that delivery of property or amount so demanded is the condition precedent for constituting an offence under Section 384 IPC.
5. With reference to offence under Section 354-D IPC, learned counsel for the applicant submits that the offence of stalking in terms of Section 354-D(1) was introduced in the Indian Penal Code vide Criminal Law (Amendment) Act, 2013 which was passed by the Parliament based on the report of the committee on amendments to Criminal Law pursuant to Nirbhaya's Case. On the basis of the report of the Committee, the Criminal Law (Amendment) Ordinance, 2013 was promulgated wherein, the offence of stalking was introduced by adding Section 354-D. For ready reference, Section 354-D IPC is reproduced herein under :-
"354D. Stalking.--(1) Any man who--
(i) follows a woman and contacts, or attempts to contact such woman to foster personal M.Cr.C. No.9857/2016 7 interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that--
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine."
The vital ingredient of the penal provision is "to foster personal interaction despite a clear indication of disinterest by the woman." The offence of stalking is attracted only when a man contacts or attempts to contact a woman to foster personal interaction repeatedly despite a clear indication of disinterest M.Cr.C. No.9857/2016 8 shown by the woman. The intention of legislature is to implicate those who maintain behavioral pattern of sexual offences. Such persons should have the intention to outrage the modesty of a woman. The meaning of 'Foster' as per Oxford Advanced Learners' Dictionary is "to encourage the development or growth of ideas or feelings" and as per Advanced Learner's Dictionary of Current English, the meaning of 'Foster' is "have in one's heart or mind."
6. Section 354-D has been inserted in the Penal Provision as a cognate offence of Section 354 which deals with assault or criminal force to a woman with the intent to outrage her modesty. The legislative intention was to bring in acts of men towards women with sexual feelings under the fold of this penal provision. In order to attract Section 354-D(1)(i) of IPC, the prosecution has to establish that a man followed a woman and contacted or attempted to contact her to foster personal interaction repeatedly despite a clear indication of disinterest by such woman. The Section takes in acts revealing sexual interest or lewd acts of man. Any act whereby a man willfully contacts or attempts to contact a woman in such a manner as to damage the virtue that attaches to a female owing to her gender attracts the offence of stalking. In the instant case, there is no such allegation that the applicant has willfully contacted or attempted to contact the complainant to M.Cr.C. No.9857/2016 9 foster his personal interaction repeatedly despite a clear indication of disinterest by the complainant.
7. Learned counsel for the applicant, on the strength of the judgment passed by the Kerala High Court in Crime No.629/2019 titled Jayaprakash P.P. vs. Sheeba Revi and Another contended the aforesaid preposition and submitted that no offence under Section 354-D is made out against the applicant. The ingredient of the offence in question are missing altogether. The threat or abuse by the applicant, if any, towards the complainant who is at loggerheads with the applicant would not attract the offence of stalking as the basic issue which was involved in the case was in respect of forged caste certificate obtained by the complainant for which a complaint was made by the co-accused before the competent authority. An enquiry was conducted on the complaint of forged caste certificate of the complainant while getting government service. Even W.P. No.5142/2016 was filed by the applicant against the State and the complainant which was disposed of vide order dated 04.05.2016 with a direction to the effect that in case, the applicant approaches the respondent authorities along with the certified copy of the order passed by the Court within a specified period, then the authority concerned shall consider and decide the grievance of the applicant in accordance with law as expeditiously as possible preferably within a period of six months. Thereafter, against the M.Cr.C. No.9857/2016 10 communication received by the complainant from the Secretary, M.P. Scheduled Tribe Commission addressed to the Inspector General of Police, Zone Jabalpur for causing an investigation in respect of the complaint with regard to forged caste certificate, the complainant unsuccessfully impugned the proceedings in W.P. No.9430/2016, but the same was dismissed on 17-4-2017 on the ground that there is a doubt whether any caste certificate has been issued from the office of Tehsildar. Therefore, in order to ascertain the genuineness of the caste certificate, it would be within the domain of the investigating agency to find out the truth. Once it is cleared that the certificate is genuine, then it will be within the domain of the High Power Committee to cause an enquiry as to whether a particular incumbent belongs to a class which he or she claims. It will not be out of context to mention that against the said order, the complainant has preferred the Writ Appeal No.427/2017 in which the operation of the order issued by M.P. State Scheduled Tribe Commission has been stayed vide order dated 08.05.2017, but it has been made clear that the investigation shall go on as per rule.
8. In view of the aforesaid facts, it is apparent that the parties are at loggerheads with each other. The lodging of an FIR is proved to be a result of misuse of penal provision. In the State of Harayana and Others vs. Bhajan Lal and Others reported in (1992) Supp. (1) SCC 335, the Hon'ble Apex Court has laid M.Cr.C. No.9857/2016 11 down parameters and categories of cases where inherent power in terms of Section 482 Cr.P.C. can be exercised either to prevent abuse of the process of law/Court or to secure the ends of justice. For ready reference, the following parameters have been laid down :-
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that M.Cr.C. No.9857/2016 12 there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with view to spite him due to private and personal grudge."
9. As far as offence under Section 507 IPC is concerned, learned counsel for the applicant submitted that the aforesaid offence is not attracted in the present case. The offence in question is based on an anonymous communication, i.e., whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes. There is no such allegation in the FIR and in the report under Section 173 Cr.P.C. that the applicant is instrumental in giving criminal intimidation by giving any anonymous communication to the complainant.
M.Cr.C. No.9857/2016 1310. On the basis of the aforesaid legal position, learned counsel for the applicant submitted that the inherent power of the High Court can be exercised even after filing of charge-sheet in order to prevent abuse of the process of law and to secure ends of justice. In support of his contention, learned counsel for the applicant placed reliance upon (2019) 11 SCC 706 titled Anand Kumar Mohatta and Another vs. State (NCT of Delhi), Department of Home and Another. It is a settled principle by now that once the charge-sheet is filed, the High Court can entertain the petition under Section 482 Cr.P.C.. While holding the legal preposition, the Hon'ble Apex Court has also placed reliance upon (2011) 7 SCC 59 titled Joseph Salvaraj A vs. State of Gujarat and Others, wherein it was held that the inherent powers of the High Court can be invoked in order to prevent abuse of the process of law and to secure the ends of justice.
11. Per contra, learned counsel for the State duly assisted by the learned counsel for the complainant vehemently opposed the prayer on the ground that the offence under Section 354 IPC as a whole is attracted. Learned counsel for the respondent/complainant placed reliance upon Rupan Deol Bajaj & Another vs. Kanwar Pal Singh Gill & Another reported in 1995 SCC (6) 194.
M.Cr.C. No.9857/2016 1412. Having heard the learned counsel for the parties, I find that the FIR in question was lodged on 04.08.2015 i.e., after coming into force of Criminal Law (Amendment) Act, 2013 whereby, the offence under Section 354-D was introduced. For the reasons recorded herein above, this Court finds that lodging of FIR and consequent report under Section 173 Cr.P.C. are the result of abuse of process of law as the offence in question in terms of Sections 384, 354-D and 507 IPC are not attracted as the ingredients of the aforesaid offences are not satisfied. As a result of the aforesaid, the powers under Section 482 Cr.P.C. can be invoked by this Court in order to prevent abuse of process of law and also to secure ends of justice.
13. In view of the above, the present petition is accepted. The impugned FIR along with entire subsequent proceedings arising therefrom is hereby quashed. Normal consequence to follow.
(RAJ MOHAN SINGH) Judge 12/01/2024 Priya.P. Digitally signed by PRIYANKA PITHAWE DN: c=IN, o=HIGH COURT OF MADHYA PRIYANKA PRADESH, ou=JABALPUR, 2.5.4.20=d37a81191de6acde444a6886a4 7abb98148aa9e495bf4864a0b98b726b9 f1cae, postalCode=482001, st=Madhya PITHAWE Pradesh, serialNumber=74E4E39D1C040FC71204 B21F23BFEF429FDE37D003F974C3A62B E699711217BE, cn=PRIYANKA PITHAWE Date: 2024.01.12 16:14:16 +05'30'