Rajasthan High Court - Jaipur
Amit Paharia vs State Of Rajasthan And Anr on 18 January, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Misccellaneous (Petition) No. 2441 / 2017
Amit Paharia S/o Shri Ashok Kumar Paharia B/c Jain, Aged About
31 Years, R/o Devipura Kothi, Near Dr. R C Dhaka Hospital PS
Udhyog Nagar, Sikar (raj.)
----Petitioner
Versus
1. State of Rajasthan Through PP
2. Manish Kumar S/o Late Shri Ramesh Kumar B/c Swami, Aged
About 25 Years, R/o Kisan Colony, Nawalgarh Road, Sikar (raj.)
Present Address C/o Shri Amar Singh Rajput, Village Malkeda,
Tehsil Piprali, Distt. Sikar (raj.)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. S.S. Hora.
For Respondent(s) : Mr. V.S. Godara, PP
Mr. Anurag Kalavatiya for complainant-
respondent No.2.
_____________________________________________________
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
Judgment reserved on : 11.01.2018
Judgment pronounced on :18.01.2018
BY THE COURT :
This criminal misc. petition has been preferred by accused- petitioner Amit Paharia with the prayer to quash the order dated 25.03.2017 passed by learned ACJM No.1, Sikar, whereby the trial court took cognizance against him for the offence under Section 384 IPC on the basis of charge-sheet No.54/2017 filed in FIR No.72/2017, registered at PS Udhyog Nagar, Sikar.
Heard learned counsel for the accused-petitioner as also learned counsel for the complainant-respondent No.2 and learned (2 of 9) [CRLMP-2441/2017] Public Prosecutor for the State.
Learned counsel for the petitioner submits that FIR No.72/2017 came to be registered for the offence under Section 306 IPC. After investigation, a charge-sheet came to be filed against the accused-persons. Rakesh Kumar & Jitendra Singh were charged for the offence under Sections 306 & 382 IPC and Amit Paharia, who is petitioner herein & Abhishek Pilaniya were charge- sheeted for the offence under Section 384 IPC. Against six other persons investigation under Section 173(8) Cr.P.C. was kept pending. Vide order dated 25.03.2017 cognizance for the offence under Section 384 IPC was taken against petitioner - Amit Paharia.
Learned counsel for the petitioner submits that the case was registered on the FIR lodged by complainant-respondent No.2 Manish Kumar Swami, on the allegation of his parents being harassed by some of the persons including the petitioner for realizing amount of loan advanced to him at a very heavy rate of interest. Learned counsel for the petitioner submits that a suicide note was left by deceased parents of complainant. The role alleged against petitioner Amit Paharia as mentioned in the said suicide note is as follows :-
"uksV%& vehr igkMh;k dh nqdku tkjh;k cktkj esa igkMh;k fMLiksty ds uke ls gSA vehr igkMh;k cgqr rst vkSj pkykd gSA ;s igys C;kt ij :i;s nsrk gSA fQj vius tky fØdsV esa Qalk ysrk gSA bl vfer igkMh;k us esjs yMds dks cgqr ywVk gSa cgqr fØdsV f[kyk;k vkSj cgqr C;kt fy;k gSA"
Learned counsel for the petitioner submits that an omnibus statement has been made in the said suicide note without (3 of 9) [CRLMP-2441/2017] mentioning any amount or rate of interest of the loan. Learned counsel submits that the complainant and petitioner Amit Paharia are childhood friends. The complainant has not stated anything against the petitioner in his statement recorded under Section 161 Cr.P.C. as to how much money and on which date was advanced by the petitioner to him and at what rate of interest he demanded the money back. He has referred to the relevant part of the statement, which reads as under :-
"eSaus o esjs firkth }kjk ?kjsyw dk;Z o nqdku ds fy;s vHkh"ksd fiykuh;k uoyx< jksM lhdj] isze pkS/kjh dksfpx lsUVj lhdj] t;iky flag 'ks[kkor eydsMk] jkds'k [khpM 'ks[kkoVh gksVy] 'ksj flg ¼'ks:½ clUr fcgkj lhdj] ftrsUnz flg clUr fcgkj lhdj] gjh pkS/kjh tks izse pkS/kjh dk HkkbZ] vfer igkfM;k nsohiqjk dksBh lhdj] lqjs'k dqekj xqtZj gR;kt] vfdr iwuh;k ls :i;s m/kkj fy;s Fks bu yksxksa us esjs ls :i;ks dh ,ot es pSd o LVkEi ys fy;s gSA ftudks eSus o esjs firkth }kjk ewy/ku e; C;kt ds pqdrk dj fn;s FksA ysfdu mlds ckn Hkh esjs pSd o LVkEi okil ugh ykSVk jgs gSA mlds ckn Hkh jkds'k [khpM xkSdqyiqjk] vHkh"ksd fiykuh;k uoyx< jksM lhdj] ftrsUnz flg clUr fcgkj lhdj] lqjs'k dqekj xqtZj gkR;kt] 'ksj flg mQZ 'ks: clar fcgkj lhdj okys gekjs fdjk;s ds edku ij esjs firkth ls :i;s ekaxus ds fy;s vkrs FksA esjs firkth }kjk :i;s ugh nsus ij ;g lHkh esjs firkth o ekrkth dks ekulhd :i ls rax ijs'kku djrs FksA mudks /kedh nsrs FksA ;g yksx esjs lkFk Hkh ekjihV dj nsrs FksA buds Mj ls eS fdjk;s ds edku ls xk;c jgrk FkkA vfer igkfM;k tks lVVk djrk Fkk eS Hkh mlds lkFk lVVk djus yx x;kA eS lVVS esa :i;s gkj tkus ij vfer igkfM;k esjs :i;s ekaxus yx x;kA eSa lVVs es :i;s gkj tkrk Fkk rc eS lVVk ds fy;s :i;s t;iky flg eydsMka] gfj pkS/kjh o isze pkS/kjh tks dksfpx pykrs gS] vfdr iqfu;k ftuls :i;s m/kkj fy;s FksA vfer igkfM;k] gfj pkS/kjh] iszse pkS/kjh] t;iky flg 'ks[kkor] vfdr iqfu;k dks eS le; ij :i;s ugh nsus ij esjs ls isuYVh ls :i;s olqy ysrs FksA vkSj isuYVh ds :i;s ugh nsus ij esjs dks /kedh nsrs FksA ;g vkt rd esjs fdjk;s ds edku ij esjs firkth ls :i;s ekxus ugh vkrs Fks vkSj esjs firkth ekrkth dks dHkh :i;ksa ds fy;s /kedh ugh nhA ;g esjs ls gh :i;ks dh iSuYVh dh ekWx djrs Fks bUgksus igys esjs firkth dks lhdj vkrs le; :i;s nsus dks dgk FkkA blh ckr dks ysdj esjs firkth }kjk budk uke lqlkbZM uksV esa fy[k fn;kA"
Learned counsel for the petitioner has drawn attention of this Court to the definition of 'extortion' given in Section 383 IPC, which reads as under:-
(4 of 9) [CRLMP-2441/2017] "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."
His contention is that as per the aforesaid statement of Manish Kumar nothing is alleged as to how the petitioner dishonestly induced the complainant to deliver any amount or property or valuable security to him. Neither any such allegation has been made in the statement that how the petitioner put him in fear to deliver any property or money and whether any money was handed over by Manish to the petitioner. In view of above, submission of learned counsel for the petitioner is that the ingredients of the offence 'extortion' are not fulfilled, for which the cognizance for the offence of extortion could have been taken.
To support his contention, learned counsel for the petitioner has placed reliance on the judgment rendered by the Hon'ble Supreme Court in Dhananjay alias Dhananjay Kumar Singh vs. State of Bihar & Anr., reported in (2007) 14 SCC 768. The relevant part of the judgment is reproduced below :-
"16. We need not, having regard to the facts and circumstances, go into the aforementioned contentious issue in the instant case, as we are of the view that no case has been made out for proceeding against the appellant under Section 384 of the Indian Penal Code. In that view of the matter, there was absolutely no reason as to why the settlement arrived at by and between the parties could not have been accepted, as the same would not come within the purview of Sub-Section (9) of Section 320 of the Code of Criminal Procedure.
17. For the reasons aforementioned, while quashing the charge framed under Section 384 of the Indian Penal Code, we direct the learned Magistrate to proceed to consider the question in regard to the maintainability of the compromise petition between the parties in accordance with law."
(5 of 9) [CRLMP-2441/2017] Reliance has also been placed on the judgment in Isaac Isanga Musumba & Ors. vs. State of Maharashtra & Ors., reported in (2014) 15 SCC 357, the relevant part of this judgment for our purpose is reproduced below :-
"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."
Learned counsel for the petitioner further submits that complainant Manish Kumar has entered into a compromise deed with petitioner Amit Paharia on 14.09.2017. In the said compromise, complainant Manish Kumar has been arrayed as First party and petitioner Amit Paharia has been arrayed as Second party, wherein the complainant Manish Kumar has admitted that the offence under Section 384 IPC was not made out against petitioner Amit Paharia. The relevant part of compromise deed is reproduced below :-
"1. The Party of the First Part accepts that the Party of the Second Part has been wrongly charge sheeted and is otherwise in no manner connected or involved with the said FIR No.72/2017 or charge sheet filed thereupon.
(6 of 9) [CRLMP-2441/2017]
2. The Party of the First Part states that the Party of the Second Part has not played any role either or instigation or abetting or harassment qua the Party of the First Part or his parents and has no role or involvement in the said FIR No.72/2017 and no act/omission amounting to any offence under Section 306 IPC is made out against him.
3. The Party of the First Part states that no demand for any money whatsoever or delivery of any amount was ever done/taken by Party of the Second Part and no act/omission amounting to offence amounting to offence under Section 384 IPC is made out.
4. That Party of the First part states that no transaction of money or any other transaction was ever done between Party of the First Part and Party of the Second Part.
5. That since there is no role of Party of the Second Part in the said FIR, therefore, party of the First Part withdraws all allegations in the said FIR qua party of the Second Part and states that criminal proceedings against Party of the Second Part may be quashed/set aside.
6. That both the parties jointly pray for quashing of Criminal proceedings against Party of Second Part emanating out of FIR No.72/2017 registered at Police Station Udyog Nagar, Sikar."
Learned counsel for the petitioner submits that even if the offence under Section 384 IPC is not compoundable as per Section 320 Cr.P.C., in the facts and circumstances of the case, the proceedings for such non-compoundable offence can be quashed and set-aside by this Court while exercising power under Section 482 Cr.P.C. In this regard, learned counsel has placed reliance on the judgments Darshan Singh and Anr. vs. State of Punjab and Anr., reported in MANU/PH/1555/2012, Manish Kumar vs. State, reported in 2016 SCC OnLine Del 2174, Tipendra vs. State of Rajasthan and Ors., reported in MANU/RH/1484/2015, Gain Singh vs. State of Punjab and Anr., reported in (2012) 10 SCC 303.
Learned Public Prosecutor has opposed the prayer made by learned counsel for the petitioner. He sought time to place certain judgments before the Court on which he wanted to rely to oppose (7 of 9) [CRLMP-2441/2017] the prayer made by learned counsel for the petitioner, but no such judgments came to be furnished by him. However, he has referred to the additional statement recorded under Section 161 Cr.P.C. of the complainant Manish Kumar on 20.03.2017, which reads as under:-
"........................ esjk nksLr vfer igkfM;k tks lVVk djrk Fkk eS Hkh mlds lkFk lVVk djus yx x;kA eS lVVs esa :i;s gkj tkus ij vfer igkfM+;k esjs ls iSuyVh yxkdj :Ik;s ekaxus yx x;kA esjs }kjk vfer igkfM;k dks le; ij :i;s iSuyVh ds ugh nsus ij T;knk iSuysVh yxk dj :i;s olwyrk FkkA vfer igkfM;k dks le; ij :i;s okil ugh nsus ij esjs ls 10 :i;k izfr lSd.Mk ls C;kt o nl gtkj :i;s ds iSuyVh ds ,d gtkj :i;s izfr fnu ds olwyrk FkkA esjs }kjk LkVVs esa :i;s gkj tkus ds dkj.k eS esjs nksLr vHkh"ksd fiykuh;k uoyx<+ jksM lhdj ls :i;s m/kkj ysrk Fkk ftldks le; ij :i;s okil ugh nsus ij og Hkh esjs ls 10 :i;k izfr lSd.Mk ls C;kt o nl gtkj ds iSuyVh ds ,d gtkj :i;s izfrfnu ds olwyrk FkkA vfer igkfM+;k o vfHk"ksd fiykuh;k esjs ls T;knk C;kt o iSuyVh ds :i;s olwyrs FksA esjs }kjk buls dkQh :i;s m/kkj fy;s Fks ftues ls dgh T;knk :i;s ls budks vnk dj fn;s ysfdu fQj Hkh ;g esjs ls :i;s ekxrs jgrs gSA esjs dks :i;s ysus o okil djus dh rkjh[k /;ku ugh gSA vkSj fdrus :i;s m/kkj fy;s fdrus :i;s okil ykSVk fn;s ftudh Hkh esjs dks tkudkjh ugh gSA ysfdu ;g yksx esjs ls vc Hkh :i;s okil ekWx jgs gSA ....................."
I have given thoughtful consideration to the contentions raised by both the sides.
Though, learned Public Prosecutor has drawn attention of this Court to the additional statement of Manish Kumar recorded on 20.03.2017, but even after taking this statement into consideration the essential ingredients of the offence of extortion are not met out. Manish Kumar has stated that Amit Paharia used to realise the amount advanced to him at a very high rate of interest of 10% per day, but merely stating it does not meet out the ingredient of offence "extortion", unless it is stated that what amount or property was actually delivered to the accused-
(8 of 9) [CRLMP-2441/2017] petitioner by the complainant pursuant to threat given by him. This fact is also missing that in what manner the accused- petitioner put Manish in fear and thereby dishonestly induced him to deliver any property or money or valuable security to the petitioner. The judgments in Dhananjay (supra) and Isaac Isanga Musumba & Ors. (supra) relied upon by learned counsel for the petitioner clearly support his contentions. Learned Public Prosecutor could not lay hand on any judgment to controvert the legal proposition laid down by these judgments. In this view of the matter, the cognizance order dated 25.03.2017 passed by the trial court appears to be laconic.
So far as the compromise deed executed on 14.09.2017 is concerned, complainant-respondent No.2 Manish Kumar, who appeared in person before the Court has also admitted the fact of compromise having taken place between him and the petitioner. In the above said compromise deed he has admitted that the petitioner has not committed any act/omission amounting to offence under Section 384 IPC. He has further admitted to withdraw all the allegations in the said FIR qua petitioner. The judgments mentioned aforesaid which have been relied upon by learned counsel for the petitioner clearly lay down that even if the offence is non-compoundable, the power under Section 482 Cr.P.C. can be exercised to quash and set-aside the proceedings for such offence, if the compromise has arrived at between the parties.
Having considered the above stated circumstances, this Court deems it proper to allow this misc. petition and to quash and set-aside the order dated 25.03.2017, by which cognizance (9 of 9) [CRLMP-2441/2017] for the offence under Section 384 IPC was taken against the accused-petitioner and also to quash and set-aside the proceedings of trial initiated qua petitioner Amit Paharia on the basis of charge-sheet No.54/2017 filed in FIR No.72/2017, registered at PS Udhyog Nagar, Sikar.
Accordingly, the misc. petition is allowed. The cognizance order dated 25.03.2017 passed by the learned ACJM No.1, Sikar and the proceedings of trial pursuant to it qua petitioner Amit Paharia are quashed and set-aside.
(DEEPAK MAHESHWARI) J.
Rm/-