Karnataka High Court
Sri Naleen Kumar Kateel vs The State Of Karnataka on 3 December, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 20.11.2024
Pronounced on : 03.12.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.10321 OF 2024
BETWEEN:
SRI NALEEN KUMAR KATEEL
S/O. NIRANJAN,
AGED ABOUT 56 YEARS,
FORMER MEMBER OF PARLIAMENT AND
KARNATAKA STATE PRESIDENT, BJP,
RESIDENCE NO.201, ASHOKA APARTMENT,
(NEAR DAIWAJNA KALYANA MANTAPA),
HOIGEBAIL ROAD, ASHOK NAGAR,
MANGALURU - 575 006.
... PETITIONER
(BY SRI K. G. RAGHAVAN, SR.ADVOCATE A/W
SRI SUYOG HERELE E., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH TILAKNAGAR POLICE STATION,
BENGALURU,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA BUILDING,
BENGALURU - 560 001.
2
2. SRI. ADARSH R. IYER
S/O. N.RAMANATHA IYER,
AGED ABOUT 50 YEARS,
CO-PRESIDENT,
JANAADHIKAARA SANGHARSHA PARISHATH (JSP),
NO.508/A/20, 7TH MAIN, 5TH CROSS,
MAHALAKSHMI LAYOUT,
BENGALURU - 560 086.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI PRASHANTH BHUSHAN, SR.ADVOCATE FOR
SRI SHIVAMURTHY A.R., ADVOCATE FOR R-2 )
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO CALL FOR RECORDS; ALLOW THIS PETITION
AND QUASH THE ENTIRE PROCEEDINGS IN CR.NO.224/2024
REGISTERED BY THE RESPONDENT NO.1 ON THE FILE OF THE
LEARNED XLII ACJM, BENGALURU CITY, FOR THE ALLEGED
OFFENCE P/U/S 384, 120(B) R/W 34 OF IPC ARISING OUT OF
PCR.NO.4880/2024 FILED BY THE RESPONDENT NO.2 AND ORDER
DTD 27.09.2024 IN PCR.NO.4880/2024 PASSED BY THE LEARNED
MAGISTRATE (PRODUCED AT DOCUMENT NO. 1, 2 AND 3).
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.11.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner, a former Member of Parliament and State
President of the Bharatiya Janata Party ('BJP' for short) is knocking
at the doors of this Court calling in question registration of a crime
in Crime No.224 of 2024 arising out of PCR No.4880 of 2024
registered for offences punishable under Sections 384, 120B and 34
of the IPC.
2. Shorn of unnecessary details, facts germane are as
follows:-
It is the case of the complainant that the petitioner and other
accused are either holding constitutional posts or office bearers of
National Party i.e., BJP at this juncture. The accused in the
impugned crime are Smt. Nirmala Sitharaman, Finance Minister,
accused No.1; officials of Enforcement Directorate, accused No.2;
office bearers of national level BJP, accused No.3; the petitioner,
the then President of the Karnataka State BJP, accused No.4;
Sri Vijayendra B Y, then Vice President and current President of
Karnataka State BJP, accused No.5; and other office bearers of the
4
State BJP. The complainant describes himself to be the Co-
President of Janaadhikaaara Sangharsha Parishath. It is the
averment that the Government of India on 02-01-2018 had notified
Electoral Bond Scheme 2018 ('the Scheme' for short) in exercise of
its power under Section 31(3) of the Reserve Bank of India Act,
1934 ('RBI Act' for short) and had brought in certain statutory
amendments. The complainant narrates that modus operandi of
the accused is that accused No.1, the Finance Minister would take
the assistance of accused No.2, officers of Enforcement Directorate
to conduct raids, searches, arrest of various corporate bodies, their
Chief Executive Officers and Managing Directors inter alia. Fearing
raids of accused No.2 unleashed at the direction of accused No.1,
the persons against whom searches, seizures and arrests were to
be made, were put in fear and coercion to buy electoral bonds
worth several crores, which are encashed by accused Nos. 3 and 4.
3. What is aforesaid is described in the complaint to be
extortion racket under the garb of electoral bonds. Three
illustrations of M/s Sterlite, M/s Vedanta Company and
M/s Aurobindo Pharma are quoted in the complaint. The issue of
5
electoral bonds became subject matter of proceedings before the
Apex Court as constitutional validity of the Scheme was questioned
in Writ Petition 880 of 2017 and connected cases. The
amendments brought into the RBI Act were held to be
unconstitutional and several directions were issued by the Apex
Court in its judgment rendered on 15-02-2024. The complaint
broadly bases its foundation upon observations of the Apex Court.
The complaint is registered on 15-04-2024.
4. The private complaint invoking Section 200 of the Cr.P.C.,
comes to be registered on 15-04-2024. Close to five months
thereafter, the concerned Court refers the matter for investigation
under Section 156(3) of the Cr.P.C., which has resulted in
registration of the impugned crime in Crime No.224 of 2024 for the
afore-quoted offences. Registration of crime is what has driven the
petitioner to this Court in the subject petition. This Court, in terms
of its order dated 30-09-2024 had granted an interim order of stay
of further investigation. The same is in operation even today.
6
5. Heard Sri K.G.Raghavan, learned senior counsel appearing
for the petitioner, Sri B.N. Jagadeesha, learned Additional State
Public Prosecutor appearing for respondent No.1 and Sri Prashanth
Bhushan, learned senior counsel appearing for respondent No.2.
SUBMISSIONS:
Petitioner:
6. The learned senior counsel for the petitioner
Sri K.G. Raghavan would submit that no case is made out in the
complaint for the offences alleged. The ingredients of none of the
offences are even met in the remotest sense in the case at hand.
He would take this Court through Section 383 of the IPC, which is
necessary for an offence under Section 384 of the IPC, Sections
120B and 34 of the IPC to contend that the facts or the averments
in the complaint do not have a semblance of ingredients of
necessities in the statutory provisions.
6.1. He would also contend that the complainant is a Co-
President of Janaadhikaara Sangharsha Parishath. The complainant
7
is not an aggrieved person. He is not put into fear for delivery of
any property. No property is lost by the complainant due to the
alleged extortion by the petitioner or other accused. He would
contend that Section 39 of the Cr.P.C., makes an exception for
criminal law being set into motion by any person. He would contend
that offence of extortion cannot be made by general public, but only
by an aggrieved person.
Respondent No.2/Complainant:
7. Per contra, the learned senior counsel Sri Prashanth
Bhushan appearing for the 2nd respondent/complainant would
vehemently refute the submissions of the petitioner to contend that
the victim will not come out in such cases. The Apex Court has
clearly held that it is open to the petitioner therein or to any one to
take recourse to common, criminal law remedy. He would take this
Court through some of the paragraphs of the aforesaid judgment
rendered by the Apex Court to buttress his submission that,
Companies who have purchased electoral bonds, have been forced
8
to purchase such bonds, after putting them in fear of raid by the
agencies controlled by the ruling party.
7.1. He would contend that in a case of this nature since the
beneficiary is the very alleged victim, he would not come forward to
register the complaint. Therefore, the general public for the purpose
of purity in administration has come forward to register the
complaint and such cases must be investigated into. Extortion, is
writ large in the case at hand, as those Companies who have parted
several thousands of crores for the purpose of purchase of electoral
bonds were put in such fear, to purchase those bonds. Therefore,
there is fear generated by the accused upon the victim i.e., the
Companies who have purchased electoral bonds and have delivered
property i.e., the transaction for purchase of electoral bonds.
7.2. He would submit that the victim in the case at hand, is
not a complainant, but every member of general public is a victim,
as policies of Government are tweaked after the receipt or after the
purchase of such electoral bonds and thus public confidence is
9
eroded. It is for this reason extortion is made out and investigation
is a must in the case at hand.
7.3. Insofar as reference under Section 156(3) of the Cr.P.C.,
is concerned, the learned senior counsel would seek to place
reliance upon judgment of the Apex Court in the case of LALITA
KUMARI v. GOVERNMENT OF U.P. reported in (2014) 2 SCC 1
to buttress his submission that once cognizable offence is either
complained of or brought before the Court in a private complaint, it
must be investigated into. The Police Officer has no choice either,
when the complaint is presented before him of a cognizable offence
and when reference is made by the learned Magistrate, except to
register the complaint. He would contend that no fault can be found
in the order of reference.
8. The learned senior counsel for the petitioner would join
issue to contend that the issue of locus has borne consideration in
the judgment of the Apex Court in the case of A.R. ANTULAY v.
R.S. NAYAK - reported in (1988) 2 SCC 602 to contend that
extortion cannot be alleged by any person of general public but
must be a direct victim.
10
8.1. The learned senior counsel Sri Prashanth Bhushan would
clarify that when there is no specific exclusion or specific bar under
the statute that holds the hands of general public in registering the
crime, it cannot be said that the present complainant has no locus
to register the complaint. He would also seek to place reliance
upon judgment of the Apex Court in the case of A.R. ANTULAY v.
R.S. NAYAK (1984) 2 SCC 500 and Constitution Bench judgment
in the case of SHEONANDAN PASWAN v. STATE OF BIHAR
reported in (1987) 1 SCC 288 and a subsequent judgment of the
Apex Court in the case of JAGJEET SINGH v. ASHISH MISHRA
reported in (2022) 9 SCC 321; all to buttress the submission that
locus is alien to criminal jurisprudence which is inclusive of offence
under Section 384 of the IPC.
Additional SPP/State:
9. The learned Additional State Public Prosecutor would seek
to toe the lines of the learned senior counsel Sri Prashanth Bhushan
appearing for the 2nd respondent/complainant. He would contend
that the matter is referred for investigation and investigation must
be permitted in the case at hand. He would also seek to place
11
reliance upon the judgment of the Apex Court in the case of
LALITA KUMARI supra to buttress his submission that once
cognizable offence is brought to the notice of the Court, a duty cast
upon the Officer in-charge of the Police Station to register the crime
under Section 154 of the Cr.P.C. It is his submission that the Apex
Court holds that Section 154 should be construed strictly to give its
natural meaning. Therefore, there is no option for the jurisdictional
Police, in the registration of crime, once cognizable offence is
brought to the notice of the said police. He would submit that same
goes with the concerned Court to make a reference under Section
156(3) of the Cr.P.C. He would submit that the petition be
dismissed and investigation be permitted.
10. I have given my anxious consideration to the submissions
made by the respective learned senior counsel and have perused
the material on record.
11. The position of the office of the accused in the case at
hand or the petitioner, accused No.4, is a matter of record. It
needs no reiteration. The complainant claims to be a Co-President
12
of a public forum. The backdrop of registration of the complaint and
the foundation is sought to be drawn from the observations of the
Apex Court. The Government of India in the year 2018 brings a
scheme by name Electoral Bond Scheme 2018 in exercise of its
power under Section 31(3) of the RBI Act. For having brought in
the said Scheme, further statutory amendment would follow to
Finance Act, RBI Act, Representation of People's Act, Income Tax
Act, Companies Act and Foreign Contribution Regulation Act, 2010.
A notification comes to be issued of the Scheme on 02-01-2018. It
was brought in for the purpose of regulating donations to political
parties in India and the aim of the Scheme was to bring in
reasonableness, transparency and accountability of such funding.
12. The Scheme need not be described or dealt with, in
minute detail, as the very Scheme was called in question before the
Apex Court in Writ Petition No.880 of 2017. The Apex Court in
terms of its judgment dated 15-02-2024 holds the Scheme to be
unconstitutional in the case of ASSOCIATION FOR DEMOCRATIC
13
REFORMS v. UNION OF INDIA1. Several paragraphs of the said
judgment are relied on by the learned senior counsel for the 2nd
respondent, which are quoted in the counter affidavit so filed. The
paragraphs quoted read as follows:
".... .... ....
103. Economic inequality leads to differing levels of
political engagement because of the deep association
between money and politics. At a primary level, political
contributions give a "seat at the table" to the contributor.
That is, it enhances access to legislators. [See Joshua L.
Kalla and David E. Broockman, "Campaign Contributions
Facilitate Access to Congressional Officials: A Randomized
Field Experiment" [2016 60(3)] American Journal of Political
Science. A political organisation conducted an experiment to
determine if there is a link between political contributions
and access to the policy-makers. The organisation scheduled
meetings between 191 Congressional offices and the
organisation's members who were campaign donors. When
the Congressional offices were informed that prospective
attendees were political donor, policy-makers made
themselves available for the meeting three to four times
more often.] This access also translates into influence over
policy-making. An economically affluent person has a higher
ability to make financial contributions to political parties, and
there is a legitimate possibility that financial contribution to a
political party would lead to quid pro quo arrangements
because of the close nexus between money and politics. Quid
pro quo arrangements could be in the form of introducing a
policy change, or granting a licence to the contributor. The
money that is contributed could not only influence electoral
outcomes but also policies particularly because contributions
are not merely limited to the campaign or pre-campaign
period. Financial contributions could be made even after a
political party or coalition of parties form Government. The
possibility of a quid pro quo arrangement in such situations is
1
(2024) 5 SCC 1
14
even higher. Information about political funding would
enable a voter to assess if there is a correlation between
policy-making and financial contributions.
... ... ...
107. In view of the above discussion, we are of the
opinion that the information about funding to a political party
is essential for a voter to exercise their freedom to vote in an
effective manner. The Electoral Bond Scheme and the
impugned provisions to the extent that they infringe upon
the right to information of the voter by anonymising
contributions through electoral bonds are violative of Article
19(1)(a).
... ... ...
147. Financial contributions to political parties are
usually made for two reasons. First, they may constitute an
expression of support to the political party and second, the
contribution may be based on a quid pro quo. The law as it
currently stands permits contributions to political parties by
both corporations and individuals. The huge political
contributions made by corporations and companies should
not be allowed to conceal the reason for financial
contributions made by another section of the population: a
student, a daily-wage worker, an artist, or a teacher. When
the law permits political contributions and such contributions
could be made as an expression of political support which
would indicate the political affiliation of a person, it is the
duty of the Constitution to protect them. Not all political
contributions are made with the intent of attempting to alter
public policy. Contributions are also made to political parties
which are not substantially represented in the legislatures.
Contributions to such political parties are made purely with
the intent of expressing support. At this juncture, the close
association of money and politics which has been explained
above needs to be recounted. Money is not only essential for
electoral outcomes and for influencing policies. It is also
necessary for true democratic participation. It is necessary
for enhancing the number of political parties and candidates
contesting the elections which would in turn impact the
demographics of representatives in the Assembly. It is true
that contributions made as quid pro quo transactions are not
an expression of political support. However, to not grant the
umbrella of informational privacy to political contributions
15
only because a portion of the contributions is made for other
reasons would be impermissible. The Constitution does not
turn a blind eye merely because of the possibilities of
misuse.
... ... ...
173. It must be recalled that we have held above that
the right to information of the voter includes the right to
information of financial contributions to a political party
because of the influence of money in electoral politics
(through electoral outcomes) and governmental decisions
(through a seat at the table and quid pro quo arrangements
between the contributor and the political party). The
underlying rationale of Section 29-C(1) is that contributions
below the threshold do not have the ability to influence
decisions, and the right to information of financial
contributions does not extend to contributions which do not
have the ability to influence decisions. Similarly, the right to
privacy of political affiliations does not extend to
contributions which may be made to influence policies. It
only extends to contributions made as a genuine form of
political support that the disclosure of such information
would indicate their political affiliation and curb various forms
of political expression and association.
... ... ...
207. The Preamble to the Constitution describes India
as a "democratic republic": a democracy in which citizens are
guaranteed political equality irrespective of caste and class
and where the value of every vote is equal. Democracy does
not begin and end with elections. Democracy sustains
because the elected are responsive to the electors who hold
them accountable for their actions and inactions. Would we
remain a democracy if the elected do not heed to the hue
and cry of the needy? We have established the close
relationship between money and politics above where we
explained the importance of money for entry to politics, for
winning elections, and for remaining in power. That being the
case, the question that we ask ourselves is whether the
elected would truly be responsive to the electorate if
companies which bring with them huge finances and engage
in quid pro quo arrangements with parties are permitted to
contribute unlimited amounts. The reason for political
contributions by companies is as open as daylight. Even the
16
learned Solicitor General did not deny during the course of
the hearings that corporate donations are made to receive
favours through quid pro quo arrangements.
... ... ...
276. The economic policies of the Government have
an impact on business and commerce. Political pressure
groups promote different agendas, including perspectives on
economic policies. As long as these pressure groups put
forward their perspective with evidence and data, there
should not be any objection even if they interact with elected
representatives. The position would be different if monetary
contributions to political parties were made as a quid pro quo
to secure a favourable economic policy. This would be an
offence under the Prevention of Corruption Act, 1988 and
also under the PMLA. Such offences when committed by
political parties in power can never see the light of the day if
secrecy and anonymity of the donor is maintained.
... ... ...
289. The great underlying principle of the Constitution
is that rights of individuals in a democratic set-up is
sufficiently secured by ensuring each a share in political
power. [ Harrison Moore, The Constitution of the
Commonwealth of Australia, p. 329 (1902).] This right gets
affected when a few make large political donations to secure
selective access to those in power. We have already
commented on pressure groups that exert such persuasion,
within the boundaries of law. However, when money is
exchanged as quid pro quo then the line between persuasion
and corruption gets blurred.
290. It is in this context that the High Court of
Australia in Jeffery Raymond McCloy v. State of New South
Wales [Jeffery Raymond McCloy v. State of New South
Wales, 2015 HCA 34 (Aust)] , observes that corruption can
be of different kinds. When a wealthy donor makes
contribution to a political party in return of a benefit, it is
described as quid pro quo corruption. More subtle corruption
arises when those in power decide issues not on merits or
the desires of their constituencies, but according to the
wishes and desires of those who make large contributions.
This kind of corruption is described as "clientelism". This can
17
arise from the dependence [ James Madison in the Federalist
Paper No. 52 notes that a Government must "depend on the
people alone". This condition, according to Professor
Lawrence Lessig, has two elements -- first, it identifies a
proper dependency ("on the people") and second, it
describes that dependence as exclusive ("alone").] on the
financial support of a wealthy patron to a degree that it
compromises the expectation, fundamental to representative
democracy, that public power will be exercised in public
interest. This affects the vitality as well as integrity of the
political branches of the Government. While quid pro quo and
clientelistic corruption erodes quality and integrity of
government decision-making, the power of money may also
pose threat to the electoral process itself. This phenomenon
is referred to as "war-chest" corruption. [ See Federal
Election Commission v. National Right to Work Committee,
1982 SCC OnLine US SC 220 : 74 L Ed 2d 364 : 459 US 197
(1982), where the petitioners submitted:"30. ... substantial
aggregations of wealth amassed by the special advantages
which go with the corporate form of organization should not
be converted into political "war chests" which could be used
to incur political debts from legislators who are aided by the
contributions...." (SCC OnLine US SC para 30)]
... ... ...
292. The Supreme Court of the United States
in Buckley v. R. Valeo [Buckley v. R. Valeo, 1976 SCC OnLine
US SC 16: 46 L Ed 2d 659: 424 US 1 (1976)] has
commented on the concern of quid pro quo arrangements
and its dangers to a fair and effective Government. Improper
influence erodes and harms the confidence in the system of
representative Government. Contrastingly, disclosure
provides the electorate with information as to where the
political campaign money comes from and how it is spent.
This helps and aides the voter in evaluating those contesting
elections. It allows the voter to identify interests which
candidates are most likely to be responsive to, thereby
facilitating prediction of future performance in office.
Secondly, it checks actual corruption and helps avoid the
appearance of corruption by exposing large contributions and
expenditures to the light of publicity. Relying
upon Grosjean v. American Press Co. [Grosjeanv. American
Press Co., 1936 SCC OnLine US SC 33 : 80 L Ed 660 : 297
18
US 233 (1936)] , it holds that informed public opinion is the
most potent of all restraints upon misgovernment. Thirdly,
record-keeping, reporting and disclosure are essential means
of gathering data necessary to detect violations of
contribution limitations."
The conclusions are not indicated in the aforesaid paragraphs. The
conclusions are found at paragraphs 222 to 226 and they read as
follows:
".... .... ....
H. Conclusion and directions
222. In view of the discussion above, the following are
our conclusions:
222.1. The Electoral Bond Scheme, the proviso to
Section 29-C(1) of the Representation of the People Act,
1951 (as amended by Section 137 of the Finance Act, 2017),
Section 182(3) of the Companies Act (as amended by
Section 154 of the Finance Act, 2017), and Section 13-A(b)
(as amended by Section 11 of Finance Act, 2017) are
violative of Article 19(1)(a) and unconstitutional; and
222.2. The deletion of the proviso to Section 182(1)
of the Companies Act permitting unlimited corporate
contributions to political parties is arbitrary and violative of
Article 14.
223. We direct the disclosure of information on
contributions received by political parties under the Electoral
Bond Scheme to give logical and complete effect to our
ruling. On 12-4-2019 [Assn. for Democratic Reforms v. Union
of India, (2022) 15 SCC 711] , this Court issued an interim
order directing that the information of donations received
and donations which will be received must be submitted by
political parties to ECI in a sealed cover. This Court directed
that political parties submit detailed particulars of the donors
as against each bond, the amount of each bond and the full
particulars of the credit received against each bond, namely,
19
the particulars of the bank account to which the amount has
been credited and the date on which each such credit was
made. During the course of the hearing, Mr Amit Sharma,
Counsel for ECI, stated that ECI had only collected
information on contributions made in 2019 because a reading
of para 17 of the interim order indicates that the direction
was only limited to contributions made in that year. Paras 16
and 17 of the interim order are extracted below: (SCC p.
719)
"16. In the above perspective, according to us,
the just and proper interim direction would be to require
all the political parties who have received donations
through electoral bonds to submit to the Election
Commission of India in sealed cover, detailed particulars
of the donors as against each bond; the amount of each
such bond and the full particulars of the credit received
against each bond, namely, the particulars of the bank
account to which the amount has been credited and the
date of each such credit.
17. The above details will be furnished forthwith
in respect of electoral bonds received by a political party
till date. The details of such other bonds that may be
received by such a political party up to the date fixed for
issuing such bonds as per the Note of the Ministry of
Finance dated 28-2-2019 i.e. 15-5-2019 will be
submitted on or before 30-5-2019. The sealed covers
will remain in the custody of the Election Commission of
India and will abide by such orders as may be passed by
the Court."
224. Para 17 of the interim order does not limit the
operation of para 16. Para 16 contains a direction in
unequivocal terms to political parties to submit particulars of
contributions received through electoral bonds to ECI. Para
17 only prescribes a timeline for the submission of
particulars on contributions when the window for electoral
bond contributions was open in 2019. In view of the interim
direction of this Court, ECI must have collected particulars of
contributions made to political parties through electoral
bonds.
20
225. In view of our discussion above, the following
directions are issued:
225.1. The issuing bank shall herewith stop the
issuance of electoral bonds;
225.2. SBI shall submit details of the electoral bonds
purchased since the interim order of this Court dated 12-4-
2019 [Assn. for Democratic Reforms v. Union of India,
(2022) 15 SCC 711] till date to ECI. The details shall include
the date of purchase of each electoral bond, the name of the
purchaser of the bond and the denomination of the electoral
bond purchased;
225.3. SBI shall submit the details of political parties
which have received contributions through electoral bonds
since the interim order of this Court dated 12-4-2019 [Assn.
for Democratic Reforms v. Union of India, (2022) 15 SCC
711] till date to ECI. SBI must disclose details
of each electoral bond encashed by political parties which
shall include the date of encashment and the denomination
of the electoral bond;
225.4. SBI shall submit the above information to ECI
within three weeks from the date of this judgment, that is,
by 6-3-2024;
225.5. ECI shall publish the information shared by SBI
on its official website within one week of the receipt of the
information, that is, by 13-3-2024; and
225.6. Electoral bonds which are within the validity
period of fifteen days but that which have not been encashed
by the political party yet shall be returned by the political
party or the purchaser depending on who is in possession of
the bond to the issuing bank. The issuing bank, upon the
return of the valid bond, shall refund the amount to the
purchaser's account.
226. Writ petitions are disposed of in terms of the
above judgment."
21
The amendments to the statutes were held to be unconstitutional
and certain directions were issued.
13. Another petition was preferred in Writ Petition (Civil)
No.266 of 2024 and connected cases after the judgment afore-
quoted was delivered by the Apex Court, seeking constitution of a
Special Investigation Team to probe into what was found by the
Apex Court in its order. The Apex Court, in terms of a separate
order dated 02-08-2024 rejected those petitions by observing as
follows:
".... .... ....
16. At the present stage, absent a recourse to the
remedies which are available under the law to pursue such
grievances, it would both be premature and inappropriate for
this Court; premature because the intervention of this Court
under Article 32 of the Constitution must be preceded by the
invocation of normal remedies under the law and contingent
upon the failure of those remedies; and inappropriate
because the intervention of this Court, at the present stage,
would postulate that the normal remedies which are
available under the law would not be efficacious.
17. This Court entertained a batch of petitions
challenging the constitutional validity of statutory
provisions embodying the Electoral Bond Scheme and
the consequential amendments which were made to
diverse statutes. The only remedy for challenging such
legislative changes lies in the invocation of the power
of judicial review. Allegations involving criminal
wrong doing, on the other hand, are of a distinct
22
nature where recourse to the jurisdiction of this Court
under Article 32 of the Constitution should not be
taken as a matter of course particularly, in view of the
remedies available in law.
18. The other reliefs which have been sought in
the batch of petitions, including a direction to the
authorities to make recoveries from political parties on
the basis that they are proceeds of crime or for the
reopening of income tax assessments impinge upon
the statutory functions of authorities constituted
under the law to make enquiries in that regard. For
instance, before an assessment is reopened, the
Assessing Officer under the Income Tax Act, 1961 has
to form a subjective opinion on the basis of tangible
material that income subject to tax has escaped
assessment. There are statutory functions to be
exercised on a case to case basis by the Assessing
Officer.
19. For the above reasons, we are of the
considered view that the constitution of an SIT headed
by a former Judge of this Court or otherwise should
not be ordered in the face of remedies which are
available under the law governing the criminal
procedure. Likewise, matters, such as the reopening of
assessments pertain to the specific statutory
jurisdiction conferred upon assessing authorities
under the Income Tax Act, 1961 and other statutes.
20. For all these reasons, we decline to exercise the
jurisdiction under Article 32 of the Constitution.
21. The Writ Petitions are accordingly dismissed."
(Emphasis supplied)
The constitution of Special Investigation Team headed by a former
Judge of the Apex Court or otherwise is declined to be ordered. The
23
declining comes about in the face of remedies which are available
under the law governing criminal procedure or the plea of reopening
of assessments to be dependent upon the Income Tax Act, 1961.
14. As observed hereinabove, the said order was passed on
02-08-2024. By then, the complainant in the case at hand had
already registered the complaint on 15-04-2024. Since the issue
now gets triggered from the complaint and its reference for
investigation, I deem it appropriate to notice the complaint. The
complaint reads as follows:
"The complainant above named submits and states as
follows:-
1. The address of the complainant for the purpose of
issuance of Court Notice, Summons etc. from this Hon'ble
Court is as shown in the cause title and summons may also
be served at S.Balan and Associates, Advocates, Prestige
Center Point No.105, 1st Floor, Cunningham Road, Kaverappa
Lay-out, Vasanthanagar, Bangalore-560 052.
2. That the addresses of the accused are mentioned in
the cause title for the purpose of service of summons,
notices etc., and summons may also be served to their
respective official offices.
3. The complainant is Co-President of
Janaadhikaara Sangharsha Parishath (JSP), registered
under Indian Trust Act, which works for Just Society
free from corruption, extortion, casteism etc., The
24
organization has initiated several legal proceedings
before various judicial and non-judicial forums.
4. The accused No.1 and 2 are holding constitutional
posts, which are more fully described in the cause title.
5. The accused No.3 and 4 are holding top position in
the ruling political dispensation.
6. It is submitted that the accused No.1 and 2 in
connivance with accused No.3 and 4 and many others who
are holding constitutional posts, CEO's and MD's of national
MNC and TNC corporate companies committed extortion
under the guise and garb of electoral bonds and benefited to
the tune of 8000 and more crores of INR.
7. It is submitted that, accused No.1 through the
clandestine aid and support of accused No.2 facilitated to
extort thousands of crores of INR for the benefit of accused
No.3 at the national level and accused No.4 in the State of
Karnataka.
8. It is submitted that, the modus operandi of the
extortion are vividly narrated herein below:
a) It appears accused No.1 press the service of
accused No.2 to conduct raids seizures and arrests of various
corporate, their CEO's, MD's etc.
b) Fearing the raids of accused No.2 unleashed by
accused No.1 through accused No.2, many corporate and
moneybags were coerced and coaxed to buy electoral bonds
worth several crores, which are encashed by accused No.3
and 4.
c) The entire extortion racket under the garb of
electoral bonds has been orchestrated hand in glove with
officials of BJP at various levels.
9. It is submitted that, the corporate Aluminum
and Copper giant M/s Sterlite and M/s Vedanta
Company lead by Mr. Anil Agarwal was subjected to
raids by accused No.2 on multiple occasions, on
25
account of which, he was made to buy electoral bonds
and in deed he purchased electoral bonds worth
230.15 crores between April 2019, August 2022 and
November 2023. The detailed analysis of electoral
bond extortion by BJP political party are herewith
produced as Annexure-A. Details of ED raids are
herewith produced as Annexure-B.
10. The complainant further submits that a
company by name M/s Aurobindo Pharma was
subjected to raids, seizures and arrests by the officials
of accused No.2 on account of which, Aurobindo
Pharma group of companies purchased electoral bonds
on 5th January 2023, 2nd July 2022, 15th November
2022 and 8th November 2023 to the tune of ₹49.5
crores. Details of extortion by BJP political party in
guise of electoral bond are herewith produced as
Annexure-C. Aurobindo Pharma fearing ED raids
turned as approver. Details of raids by second accused
are separately produced as Annexure-D.
11. The complainant submits that, conspiracy
secretly meted out by accused No.1 to accused No.4 at
various levels culminated in to not only extorting
multiple thousands of crores in the name of electoral
bond but also led to arrest of sitting Chief Minister of
State of Delhi on the ground that one of the Directors
of M/s Aurobindo Pharma companies turned approver
and raised fingers against him.
12. It is relevant to submit that, Hon'ble
Supreme Court made several observation against
electoral bonds in its judgment. The entire events,
facts and circumstances of electoral bonds are within
the official domain of various law enforcement
agencies.
13. The complainant lodged a detailed report in writing
before SHO, Tilaknagar Police Station on 30.03.2024.
Despite receiving complaint, no action has been taken. The
copy of complaint herewith produced at Annexure-E.
26
14. The complainant has approached DCP, Bangalore
South East, on 02-04-2024 for needful action, but no action
has been taken. The copy of complaint to DCP is herewith
produced at Annexure-F.
15. The complainant submits that, in compliance of
Priyanka Srivastava case, he is filing an affidavit narrating as
to how he ran pillar to post approaching law enforcing
agencies to register a FIR for the purpose of investigation
and report.
16. The complainant submits that, the judgment of
High Court in Crl.P.No.2006/2014 connected with
2005/2014, 999/2015 between N.C. Shivakumar and
another v. State of Lokayukta Police and another has
set ratio that the Magistrate and Sessions Judge is bestowed
with the power to refer the complaint U/s 156(3) CrPC
without any sanction U/s 197 of CrPC. There are catena of
decisions of Karnataka High Court and Supreme Court that
sanction is not required to refer the complaint filed U/s
156(3) CrPC for the purpose of filing FIR and investigation by
a police station.
PRAYER
Wherefore, the complainant humbly prays that
this Hon'ble Court may be pleased to refer complaint
to SHO, Tilaknagar Police Station with a direction to
register a FIR to investigate and report U/s 156(3)
CrPC for the offences punishable U/s 384, 120B r/w
34 IPC in the ends of law and justice."
(Emphasis added)
Complaint is registered before the jurisdictional Court invoking
Section 200 of the Cr.P.C., on the aforesaid date. The complainant,
on several occasions, seeks adjournments even for a reference.
Finally, on 27-09-2024, 5 months after registration of the complaint
27
and long after the order passed by the Apex Court quoted supra,
the complaint is referred for investigation. The order of reference is
necessary to be noticed. It reads as follows:
".... .... ....
It is the allegation of the complainant that there had
been a conspiracy among the accused No.1 to 4 at various
levels for extortion of thousands of crores in the name of
electoral bonds. In prosecution of said conspiracy the
accused No.1 through the clandestine aid and support
of accused No.2 facilitated to extort such thousands of
crores of money for the benefit of accused No.3 at the
national level and accused No.4 at the State level. As
such they have committed the offence P/U/Sec.384 &
120B R/w 34 IPC.
Upon perusal of the complaint allegations and
considering the nature of the offences alleged to have been
committed by the accused, it appears proper to refer to the
recent decisions of Hon'ble Apex Court on the issue of
Electoral Bonds before taking any decision on the prayer of
complainant.
In the case of Association for Democratic Reforms
& Another v. Union of India reported in 2024 INSC 113, in
W.P.(C) No.880/2017, dated 15th February 2024 the Hon'ble
Apex Court has declared The Scheme of Electoral Bonds
notified by the Central Government on 02.01.2018 as
unconstitutional.
Further in a decision in the case of Common cause &
another v. Union of India, in W.P.(Civil) No.266 of 2024 c/w
W.P.(Civil) No.421 of 2024, 293 of 2024 and W.P.(Civil)
No.454 of 2024 dated 02-08-2024 seeking the Hon'ble Apex
Court for a Court monitored investigation into the electoral
bonds Scheme on the ground that there was quid pro quo
between corporates who purchased the bonds and the
political parties who got the donations, the Hon'ble Apex
Court has rejected the plea observing that constitution of
28
such an SIT should not be ordered under Article 32 of the
Constitution of India on the face of remedies which are
available under the law governing both criminal procedures
i.e., ordinary law governing Criminal procedure.
Thus, it appears that though the Scheme of
Electoral Bonds is declared as unconstitutional by the
Hon'ble Apex Court under Article 32, for any criminal
action in respect of any criminal wrong doing under
the said scheme the remedies are available under
Criminal law. Therefore, the complainant appears to be
right in approaching this Court seeking for an
investigation into the alleged criminal wrong doing of
the accused under the said Scheme. Hence, in the light
of the Nature of allegations made in the complaint,
this Court is of the opinion that an investigation
through a competent investigation agency is proper.
The complainant has duly complied the guidelines of
Hon'ble Apex Court in Priyanka Srivathsava's case as to
exhaustion of Section 154 of Cr.P.C., and filed affidavit.
Hence, I hereby refer this complaint
U/Sec.156(3) of Cr.PC to the SHO, Thilaknagar Police
Station, Bengaluru, for investigation.
Office to send the complaint and connected papers to
the said police station.
Await FIR.
Call on 10-01-2024."
(Emphasis added)
The reference then becomes a crime in Crime No.224 of 2024 for
offences punishable under Sections 384, 120B and 34 of the IPC.
Registering the crime lands the petitioner to the doors of this Court
in the subject petition.
29
15. In furtherance of what is narrated hereinabove, two
pivotal issues would emerge for consideration:
(1) Whether the ingredients of extortion are met in
the case at hand?
(2) Whether the complainant to be considered to be
an aggrieved person to seek registration of an
offence under Section 384 of the IPC for
extortion?
Issue No.1:
Whether the ingredients of extortion are met in the
case at hand?
16. To consider whether a case of extortion is made out,
even prima facie, it becomes necessary to notice the statutory
provisions. The offence alleged is the one punishable under Section
384 of the IPC, inter alia. Section 384 of the IPC reads as follows:
"384. Punishment for extortion.--Whoever
commits extortion shall be punished with imprisonment of
either description for a term which may extend to three
years, or with fine, or with both."
30
Section 384 deals with punishment for extortion. What is extortion
is dealt with under Section 383. It reads as follows:
"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."
(Emphasis supplied)
Section 383 mandates that whoever intentionally puts any person in
fear of any injury to that person or to any other and thereby
31
dishonestly induces the person so put in fear to deliver any
property or valuable security, the said accused is said to have
committed the offence of extortion. Therefore, extortion has
certain elements present in Section 383 of the IPC. They are, the
accused must dishonestly put a person in fear of any injury, and the
intention must be illegal to deliver any property and the property
must be delivered, to the accused, by the victim. The words found
in Section 383 have certain statutory meanings. Section 24 of the
IPC defines the word 'dishonestly'. It reads as follows:
"24. "Dishonestly".--Whoever does anything with
the intention of causing wrongful gain to one person
or wrongful loss to another person, is said to do that
thing "dishonestly"."
(Emphasis supplied)
Section 43 defines the word 'illegal'. It reads as follows:
"43. "Illegal", "Legally bound to do".--The word
"illegal" is applicable to everything which is an offence
or which is prohibited by law, or which furnishes
ground for a civil action; and a person is said to be
"legally bound to do" whatever it is illegal in him to
omit."
(Emphasis supplied)
Section 44 of the IPC defines the word 'injury'. It reads as follows:
32
"44. "Injury".--The word "injury" denotes any
harm whatever illegally caused to any person, in body,
mind, reputation or property."
(Emphasis supplied)
Therefore, what 'dishonestly' would mean is, illegal intention of
causing injury must be present in a case of extortion apart from the
fact that delivery of property is imperative in such a case. All the
aforesaid facts of dishonestly putting someone in fear for cause of
an injury for illegal actions must be done or caused by the accused
upon the victim. The Apex Court has clearly delineated as to what
are the necessary ingredients of extortion, wherein the Apex Court
holds that all the ingredients as aforesaid must be present in an
allegation of extortion, failing which the offence under Section 383
of the IPC would not be met even prima facie. The Apex Court in
the case of DHANANJAY v. STATE OF BIHAR2, has held as
follows:
".... .... ....
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.
2
(2007) 14 SCC 768
33
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."
(Emphasis supplied)
In a subsequent judgment, the Apex Court interpreting Sections
383 and 384 of the IPC, in the case of ISAAC ISANGA MUSUMBA
v. STATE OF MAHARASHTRA3 holds as follows:
".... .... ....
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 and 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:
3
(2014) 15 SCC 357
34
"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.
4. We also find on the reading of the FIR, there is also
an allegation that on 18-4-2013 between 1 p.m. and 5.30
p.m. the accused persons illegally entered into the Head
Office of the Company at Fort and demanded 20 million
dollars (equivalent to Rs 110 crores) saying that they have
international arrest warrants against the complainants and
upon failure to pay the said sum the complainants will have
to face dire consequences. It is because of this allegation in
the FIR, the offence under Section 441 IPC is alleged to have
been committed by the accused persons. On reading Section
441 IPC we find that intent to commit an offence or to
intimidate, insult or annoy any person in possession of
property is a necessary ingredient of the offence of criminal
trespass. It is not disputed that there was a business
transaction between the accused persons and the
complainants. Hence, if the accused persons have visited the
premises of the complainants to make a demand towards
their dues, we do not think a case of "criminal trespass" as
defined in Section 441 IPC is made out against the accused
persons.
5. Section 120-B IPC will be attracted only if two
or more persons agree to do an illegal act or a legal
act by illegal means. As the offences under Sections
384 and 441 IPC are not made out, and no other
illegal act is alleged in the FIR, no case of criminal
conspiracy against the accused persons is also made
out."
(Emphasis supplied)
35
In a later judgment the Apex Court in the case of SALIB v. STATE
OF U.P.4, differentiates extortion from theft and holds extortion is
bringing something to the knowledge of the victim and theft is
robing away something without his knowledge. Therefore, for
offence of extortion, element of consent by putting the victim in
fear of injury is imperative. The Apex Court holds in the said
judgment as follows:
".... .... ....
20. We take notice of the fact that Section 386 of
the IPC has also been invoked. Section 386 of
the IPC relates to extortion by putting a person in fear
of death or grievous hurt. Section 386 of the IPC runs
as follows:--
"Section 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 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. "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.
4
2023 SCC OnLine SC 947
36
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):--
37
"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."
24. 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."
25. 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)
38
Long before the aforesaid judgments, the Apex Court in the case of
R.S. NAYAK v. A.R. ANTULAY5 while considering what would
amount to extortion has held as follows:
".... .... ....
60. "Extortion" is thus defined in Section 383, IPC:
"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."
The main ingredients of the offence are:
(i) the accused must put any person in fear of injury
to that person or any other person;
(ii) the putting of a person in such fear must be
intentional;
(iii) 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;
and
(iv) such inducement must be done dishonestly.
Before a person can be said to put any person in fear of any
injury to that person, it must appear that he has held out
some threat to do or omit to do what he is legally bound to
5
(1986) 2 SCC 716
39
do in future. If all that a man does is to promise to do a
thing which he is not legally bound to do and says that if
money is not paid to him he would not do that thing, such
act would not amount to an offence of extortion. We agree
with this view which has been indicated
in HabibulRazak v. King-Emperor [AIR 1924 All 197: 25 Cri
LJ 961: 21 ALJ 850]. There is no evidence at all in this
case that the managements of the sugar cooperatives
had been put in any fear and the contributions had
been paid in response to threats. Merely because the
respondent was Chief Minister at the relevant time and
the sugar cooperatives had some of their grievances
pending consideration before the Government and
pressure was brought about to make the donations
promising consideration of such grievances, possibly
by way of reciprocity, we do not think the appellant is
justified in his contention that the ingredients of the
offence of extortion have been made out. The evidence
led by the prosecution falls short of the requirements
of law in regard to the alleged offence of extortion. We
see, therefore, no justification in the claim of Mr
Jethmalani that a charge for the offence of extortion
should have been framed."
(Emphasis supplied)
On a coalesce of judgments rendered by the Apex Court quoted
supra, what would unmistakably emerge is that, the petitioner or
other accused should have put the complainant in fear for delivery
of property. It is not the case of the complainant, even in the
complaint, that he has been put to fear of injury and he has
delivered any property to the accused. Therefore, meeting of
ingredients, in the case at hand of Section 383 of the IPC, as
40
elucidated by the Apex Court, is a figment of imagination, of the
complainant. He is a Co-President of a public forum and projects
the complaint to be a public interest litigation. The Apex Court in
the afore-quoted paragraphs of the order of 02-08-2024 in
W.P.(Civil) No.266 of 2024 may have permitted, action to be taken
in accordance with law, and not de hors law. Therefore, if a victim
had complained that he had purchased electoral bonds it would
have been an altogether different circumstance. The other offence
alleged is the offence punishable under Section 120-B of the IPC,
allegation of criminal conspiracy. If the offence under Section 383
as made penal under Section 384 itself is not made out, it can
hardly be said that further investigation must be permitted only for
offence under Section120-B of the IPC. Therefore, the offence of
120-B of the IPC gets subsumed on the reasons rendered to hold
that the offence under Section 384 is not met in the case at hand.
Therefore, issue No.1 is answered against the complainant.
41
Issue No.2:
Whether the complainant to be considered to be an
aggrieved person to seek registration of an offence under
Section 384 of the IPC for extortion?
17. Here comes the issue of locus, the kernel of the
conundrum, the pivotal issue No.2. The complainant, as observed
hereinabove, is Co-President of Janaadhikaara Sangharsha
Parishath. Admittedly he is not the victim. It is not his case that he
has been put into fear for delivery of any property and the property
has been delivered by him to the accused. Therefore, he is alien to
the alleged transaction or the observations made by the Apex
Court. It is also trite law that criminal law can be set into motion
by any person, a caveat, not for all offences under the IPC.
Therefore, the interplay between the concept that criminal law can
be set into motion by any person, and its exceptions is required to
be noticed.
18. The concept that criminal law can be set into motion by
any person is not a concept that is dropped from air. It bears
42
statutory recognition, as obtaining under Section 39 of the Cr.P.C.
Section 39 of the Cr.P.C., reads as follows:
"39. Public to give information of certain
offences.--(1) Every person, aware of the commission of, or
of the intention of any other person to commit, any offence
punishable under any of the following sections of the Indian
Penal Code (45 of 1860), namely:--
(i) Sections 121 to 126, both inclusive, and Section 130
(that is to say, offences against the State specified in
Chapter VI of the said Code);
(ii) Sections 143, 144, 145, 147 and 148 (that is to say,
offences against the public tranquillity specified in
Chapter VIII of the said Code);
(iii) Sections 161 to 165-A, both inclusive (that is to say,
offences relating to illegal gratification);
(iv) Sections 272 to 278, both inclusive (that is to say,
offences relating to adulteration of food and drugs,
etc.);
(v) Sections 302, 303 and 304 (that is to say, offences
affecting life);
(v-a) Section 364-A (that is to say, offence relating to
kidnapping for ransom, etc.);
(vi) Section 382 (that is to say, offence of theft after
preparation made for causing death, hurt or restraint
in order to the committing of the theft);
(vii) Sections 392 to 399, both inclusive, and Section 402
(that is to say, offences of robbery and dacoity);
(viii) Section 409 (that is to say, offence relating to criminal
breach of trust by public servant, etc.)
(ix) Sections 431 to 439, both inclusive (that is to say,
offences of mischief against property);
(x) Sections 449 and 450 (that is to say, offence of
house-trespass);
(xi) Sections 456 to 460, both inclusive (that is to say,
offences of lurking house-trespass); and
(xii) Sections 489-A to 489-E, both inclusive (that is to say,
offences relating to currency notes and bank notes),
43
shall, in the absence of any reasonable excuse, the burden of
proving which excuse shall lie upon the person so aware,
forthwith give information to the nearest Magistrate or police
officer of such commission or intention.
(2) For the purposes of this section, the term "offence"
includes any act committed at any place out of India which
would constitute an offence if committed in India."
Section 39 clearly demarcates what are the offences that can be
complained of by the public and person aggrieved. The section
clearly indicates that every person aware of the commission of
offence or of the intention of any person to commit any offence
under Sections 121 to 126 which come under Chapter-VI of the IPC
deal with offences against the State; Section 130 also figures in
Chapter-VI which is aiding escape or harbouring a prisoner;
Sections 143 to 148 which come under Chapter-VIII deal with
offences against public tranquillity; Sections 161 to 165A which
come under Chapter-IX deal with offences by or relating to public
servants; Sections 272 to 278 both inclusive which come under
Chapter-XIV deal with offences affecting public health, safety,
convenience, decency and morals; Sections 302 to 304 which come
under Chapter XVI deal with offences affecting the human body;
Section 364A which deals with kidnapping for ransom; Section 382
44
which comes under Chapter-XVII deals with theft or offences
against property; Sections 392 to 399 deal with punishment for
robbery and extends up to dacoity and preparation for dacoity,
even assembling for the purpose of committing dacoity; Section
409 deals with criminal breach of trust by a public service; Section
431 to 439 deal with mischief by injury to public road and all other
offences which involve public; Sections 449 and 450 deal with
grievous hurt while committing house trespass or house breaking;
Sections 489A to 489E deal with counterfeiting currency notes and
bank notes, making use of documents resembling currency notes
and bank notes. Section 39 stops at that.
19. A Constitution Bench of the Apex Court in the case of
LALITA KUMARI supra interprets Section 39 and its interplay with
Section 154. The Apex Court holds as follows:
".... .... ....
55. In view of the above, the use of the word "shall"
coupled with the scheme of the Act lead to the conclusion that
the legislators intended that if an information relating to
commission of a cognizable offence is given, then it would
mandatorily be registered by the officer in charge of the
police station. Reading "shall" as "may", as contended by
some counsel, would be against the scheme of the Code.
Section 154 of the Code should be strictly construed and the
45
word "shall" should be given its natural meaning. The golden
rule of interpretation can be given a go-by only in cases
where the language of the section is ambiguous and/or leads
to an absurdity.
56. In view of the above, we are satisfied that Section
154(1) of the Code does not have any ambiguity in this
regard and is in clear terms. It is relevant to mention that
Section 39 of the Code casts a statutory duty on every
person to inform about commission of certain offences
which includes offences covered by Sections 121 to
126, 302, 64-A, 382, 392, etc. of the Penal Code. It
would be incongruous to suggest that though it is the
duty of every citizen to inform about commission of an
offence, but it is not obligatory on the officer in charge
of a police station to register the report. The word
"shall" occurring in Section 39 of the Code has to be
given the same meaning as the word "shall" occurring
in Section 154(1) of the Code."
(Emphasis supplied)
The Apex Court holds that Section 39 of the Code casts a statutory
duty on every person to inform about commission of certain
offences, as found in Section 39 covered by several sections quoted
therein and further holds that it would be incongruous to suggest
that though it the duty of every citizen to inform about commission
of an offence, it is not obligatory on the officer in-charge of the
Police Station to register the report. The finding of the Apex Court is
unequivocal and the purport is clear that any person can set the
criminal law in motion only insofar as offences enumerated in
46
Section 39 and notwithstanding the enumeration under Section 39,
if the officer in-charge of the Police Station would not register the
crime, it would not lead to incongruity. Therefore, the unmistakable
inference of Section 39 and its purport as held by the Apex Court is
that, Sections 383 and 384 are persons specific, which would mean
that they can be alleged only by the aggrieved person. It is not
public specific. For an illustration, if a person is assaulted and has
suffered injury that cannot be complained of by a
stranger/neighbour. The person who has suffered assault should
necessarily be the complainant. If he chooses not to register the
complaint for reasons best known to him, a stranger cannot
complain that a stranger has been assaulted and he is the victim.
Likewise, as held by the Apex Court in the case of SALIB supra
theft would not require consent. Extortion would require putting a
person in fear of consent.
20. Insofar as the judgments relied on by the learned senior
counsel for the 2nd respondent/complainant in the cases of
SHEONANDAN PASWAN and JAGJEET SINGH supra, both the
judgments of the Apex Court follow the law laid down in A.R.
47
ANTULAY supra. The Apex Court holds therein that the concept of
locus standi of a complainant is a concept foreign to criminal
jurisprudence. The Apex Court holds in SHEONANDAN PASWAN
supra that it does not find why the prosecution for an offence
against the Society that was alleged in that case was being wrongly
withdrawn. The Apex Court was clearly holding that offences
against the Society should not merely an individual wrong.
Therefore, the Apex Court holds that any member of the Society
must have locus to initiate a prosecution and desist withdrawal of
such prosecution if had been initiated, as the offences therein were
offences of corruption and therefore, the Apex Court holds that any
public interested in cleanliness of public administration and public
morality would be entitled to file a complaint. There can be no
qualm about the principles elucidated by the Apex Court. The Apex
Court was clear that where offences are against the Society, it did
not consider the purport of Section 39 of the Cr.P.C., therein.
Again, the Apex Court in JAGJEET SINGH was considering the
concept of victim. The Apex Court holds victim can be a stranger
even and a stranger can become an informant and the victim need
not be the complainant or the informant for an offence of felony.
48
There can be no qualm again for the principle so laid down therein.
The judgments so rendered by the Apex Court in SHEONANDAN
PASWAN and JAGJEET SINGH cannot be read in isolation to the
facts obtaining before the Apex Court in those cases and if it is
considered on the facts obtaining therein, it would become
inapplicable to the facts obtaining in the case at hand. Therefore, all
the three judgments in the cases of A.R. ANTULAY,
SHEONANDAN PASWAN and JAGJEET SINGH are inapplicable to
the facts obtaining in the case at hand.
21. Reference is also made to corresponding provisions with
regard to Section 384 of the IPC in the new regime, the Bharatiya
Nyaya Sanhita, 2023 ('BNS' for short). Section 308 of BNS deals
with extortion. It reads as follows:
"308. Extortion.--(1) 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.
49
(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 signs 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 signs and delivers the paper to A.
Here, as the paper so signed may be converted into a
valuable security. A has committed extortion.
(e) A threatens Z by sending a message through an
electronic device that "Your child is in my possession,
and will be put to death unless you send me one lakh
rupees." A thus induces Z to give him money. A has
committed extortion."
Section 308 has 7 sub-sections. It covers the entire spectrum from
Sections 383 to 388 of the IPC. There is no other change in the
language. It is only a change of grouping of the offence. Even the
illustrations are the same. Therefore, the judgments of the Apex
Court quoted supra, qua interpretation of Sections 383 and 384 of
the IPC would also become applicable to Section 308 of the BNS.
Likewise, Section 33 of the Bharatiya Nagarik Suraksha Sanhita,
2023 is the corresponding provision of Section 39 of the Cr.P.C.
There is again no change, addition or deletion of offences
enumerated in Section 39 of the Cr.P.C., in Section 33 of the BNSS.
50
Therefore, the interpretation rendered by this Court supra, qua
Section 39 of the Cr.P.C., would become applicable to Section 33 of
the BNSS as well.
22. Therefore, I have no hesitation to hold that the complaint
suffers from want of locus to register the complaint even for offence
punishable under Section 384 of the IPC for extortion. The learned
Magistrate who has referred the matter for investigation in terms of
his order supra does not advert to this issue. Merely because the
complainant has registered a complaint which projects alleged
extortion, the learned Magistrate cannot become a rubber stamp
Presiding Officer to the complaint, to refer the matter for
investigation, without application of mind to the relevant statutory
provisions. Therefore, issue No.2 is also answered against the
complainant, holding that he is an alien to the transaction and an
alien cannot complain of extortion.
23. It now becomes germane in the journey, to consider
whether this Court, could entertain the petition under Section 482
of the Cr.P.C., and interdict or obliterate the crime, as it is still at
51
the stage of investigation. The Apex Court permits such an
exercise. The Apex Court in the case of MAHMOOD ALI v. STATE
OF U.P.6, has held as follows:
".... .... ....
13. At this stage, we would like to observe something
important. Whenever an accused comes before the
Court invoking either the inherent powers under
Section 482 of the Code of Criminal Procedure (CrPC)
or extraordinary jurisdiction under Article 226 of the
Constitution to get the FIR or the criminal proceedings
quashed essentially on the ground that such
proceedings are manifestly frivolous or vexatious or
instituted with the ulterior motive for wreaking
vengeance, then in such circumstances the Court owes
a duty to look into the FIR with care and a little more
closely. We say so because once the complainant
decides to proceed against the accused with an
ulterior motive for wreaking personal vengeance, etc.,
then he would ensure that the FIR/complaint is very
well drafted with all the necessary pleadings. The
complainant would ensure that the averments made in
the FIR/complaint are such that they disclose the
necessary ingredients to constitute the alleged
offence. Therefore, it will not be just enough for the
Court to look into the averments made in the
FIR/complaint alone for the purpose of ascertaining
whether the necessary ingredients to constitute the
alleged offence are disclosed or not. In frivolous or
vexatious proceedings, the Court owes a duty to look
into many other attending circumstances emerging
from the record of the case over and above the
averments and, if need be, with due care and
circumspection try to read in between the lines. The
Court while exercising its jurisdiction under
Section 482 of the CrPC or Article 226 of
theConstitution need not restrict itself only to the
6
2023 SCC OnLine SC 950
52
stage of a case but is empowered to take into account
the overall circumstances leading to the
initiation/registration of the case as well as the
materials collected in the course of investigation. Take
for instance the case on hand. Multiple FIRs have been
registered over a period of time. It is in the background of
such circumstances the registration of multiple FIRs assumes
importance, thereby attracting the issue of wreaking
vengeance out of private or personal grudge as alleged."
(Emphasis supplied)
The Apex Court yet again, in the case of SALIB supra observes as
follows:
".... .... ....
28. At this stage, we would like to observe something
important. Whenever an accused comes before the
Court invoking either the inherent powers under
Section 482 of the Code of Criminal Procedure (CrPC)
or extraordinary jurisdiction under Article 226 of the
Constitution to get the FIR or the criminal proceedings
quashed essentially on the ground that such
proceedings are manifestly frivolous or vexatious or
instituted with the ulterior motive for wreaking
vengeance, then in such circumstances the Court owes
a duty to look into the FIR with care and a little more
closely. We say so because once the complainant
decides to proceed against the accused with an
ulterior motive for wreaking personal vengeance, etc.,
then he would ensure that the FIR/complaint is very
well drafted with all the necessary pleadings. The
complainant would ensure that the averments made in
the FIR/complaint are such that they disclose the
necessary ingredients to constitute the alleged
offence. Therefore, it will not be just enough for the
Court to look into the averments made in the
FIR/complaint alone for the purpose of ascertaining
whether the necessary ingredients to constitute the
53
alleged offence are disclosed or not. In frivolous or
vexatious proceedings, the Court owes a duty to look
into many other attending circumstances emerging
from the record of the case over and above the
averments and, if need be, with due care and
circumspection try to read in between the lines. The
Court while exercising its jurisdiction under
Section 482 of the CrPC or Article 226 of the
Constitution need not restrict itself only to the stage of
a case but is empowered to take into account the
overall circumstances leading to the
initiation/registration of the case as well as the
materials collected in the course of investigation. Take
for instance the case on hand. Multiple FIRs have been
registered over a period of time. It is in the background of
such circumstances the registration of multiple FIRs assumes
importance, thereby attracting the issue of wreaking
vengeance out of private or personal grudge as alleged.
(Emphasis supplied)
On the observations made by the Apex Court in the cases of
MAHMOOD ALI and SALIB, rendered on the same day by the
same Bench, what would unmistakably emerge is that, this Court
exercising jurisdiction under Section 482 of the Cr.P.C., is
empowered to go beyond what is pleaded in a well drafted
complaint, and take note of overall circumstances leading to
registration of complaint, by reading between the lines of the
complaint and considering the issue/s thereon and if considered, in
the light of the prismatic analysis supra, the inescapable conclusion
54
would be, entertainment of the petition and obliteration of the
crime.
24. Reference being made to the judgment of the Apex Court
in the case of STATE OF HARYANA v. BHAJANLAL7, is apposite.
The Apex Court therein has held as follows:
".... .... ....
102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter XIV
and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice, though
it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines
or rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be exercised.
(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
7
1992 Supp (1) SC 335
55
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
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 a view
to spite him due to private and personal grudge."
(Emphasis supplied)
56
The Apex Court holds where the allegations made in the FIR even if
they are taken to their face value do not constitute a prima facie
offence, such crime should be nipped in the bud. In the case on
hand, there is not even a modicum of ingredients of the offence
made out even to its prima facie sense, what the complainant
projects is a huge hocus-pocus, but alas, he has no locus.
Therefore, I deem it appropriate to exercise my jurisdiction under
Section 482 of the Cr.P.C., and annihilate the crime so registered
against the petitioner/accused.
25. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Proceedings in Crime No.224 of 2024 arising out of PCR No.4880 of 2024 pending before the XLII Additional Chief Judicial Magistrate, Bengaluru City stand quashed qua the petitioner.
57Pending applications, if any, stand disposed as a consequence.
Sd/-
(M. NAGAPRASANNA) JUDGE Bkp CT:MJ