Jharkhand High Court
Vinay Kumar M. Chaudhari @ Vinay Kumar vs The State Of Jharkhand on 2 September, 2020
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 285 of 2019
WITH
I.A. No. 5590 of 2019
----
1. Vinay Kumar M. Chaudhari @ Vinay Kumar
2. Sandip Kumar Mishra @ Sandip Mishra ... Petitioners
-versus-
1. The State of Jharkhand
2. Narendra Kumar Sinha ... Opposite Parties
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
----
For the Petitioners : Mr. Ajit Kumar Sinha, Sr. Advocate
Mr. R. Sudhinder, Advocate
Mr. Indrajit Sinha, Advocate
For the State: Mr. Abhay Kumar Tiwary, A.P.P.
For the O.P. No.2 : Mr. Rajendra Krishna, Advocate
Mr. Faiz-ur-Rahman, Advocate
----
ORDER
RESERVED ON 21.10.2019 PRONOUNCED ON 02.09.2020
1. Petitioners, through this criminal miscellaneous petition have prayed for quashing the entire criminal proceeding, the FIR and the order dated 22.12.2018 passed in Complaint Case No.1409 of 2018, whereby the learned Chief Judicial Magistrate sent a copy of complaint petition to the Officer-in-Charge under Section 156(3) of the Code of Criminal Procedure, with a direction to register a First Information Report and submit a report after investigation.
2. This case was listed under the heading "For Orders". Counsel for the parties in course of arguments, submitted that this criminal miscellaneous petition can be disposed of at the stage of 'Orders' itself, so they finally argued at length. After hearing the parties, the final order was reserved, which is being delivered today.
3. The present case arises out of complaint case being Complaint Case No.1409 of 2018. The opposite party No.2 had initially filed Sanha on 22.11.2018 and thereafter had filed the complaint in the Court of the Chief Judicial Magistrate, Bokaro. The complainant earlier lodged an FIR being Sector P.S. Case No.86 of 2018 against Mr. Uni Krishnan, MD, Thermax Ltd. alleging fraudulent business transaction. It is alleged that the petitioners, claiming themselves as Officers of Thermax Ltd., contacted the complainant on 14.08.2018 through his mobile phone 9934123755 for amicable solution of the aforesaid case. The complainant had at first refused to the proposal of 2 meeting, but, later on agreed to meet the accused persons on 15.08.2018 at Hans Regency. The complainant along with Mr. Kamal Kishore Prasad and Dilip Kumar Singh, who was his staff went to the said Hotel at Room No.412 to meet the petitioners. It is alleged that the amicable communication turned into squabbled. Petitioner No.1 started creating compulsion on the complainant to withdraw the said case. It is alleged that if he will settle on their terms and conditions, then the complainant will be compensated by an amount of Rs.10,00,000/-. It is alleged that the complainant was not willing to bow down to the rash behaviour and mischievous intentions. Seeing such contrary opinion of the complainant, it is alleged that the petitioner No.1 dishonestly induced the complainant that he can turn the table and bring change in scenario for which the complainant will have to pay Rs.20,00,000/-. It is alleged that the petitioners put the complainant in fear of his death and that of his family members if he resists from either to withdraw Sector 4 P.S. Case No.86 of 2018 or pay them the amount of Rs.20,00,000/-. It is alleged that the complainant was also physically assaulted by the petitioners in the Hotel Room, but due to intervention by Kamal Kishore Prasad, the complainant came out of the hotel room and was very ill due to such unexpected event. Due to his deteriorating health, he was taken to America for treatment on 23.09.2018. It is alleged that on 24.10.2018, when the complainant came back to India, he started receiving extortion calls from unknown numbers for Rs.20,00,000/-, whereafter he registered a Sanha in Sector 1 Police Station on 22.11.2018. It is alleged on 17.12.2018, one more letter was given to the Officer-in-Charge, Sector 1 Police Station as reminder, but FIR was not registered by the police against the petitioners due to their influence and approaches. It is alleged that the complainant is still living in great fear and apprehension that the petitioners may commit murder of the complainant and his family members.
4. Mr. Ajit Kumar Sinha, learned Senior Counsel appearing for the petitioners, challenging the First Information Report, submits that no offence at all far less a criminal offence is made out from a bare perusal of the First Information Report. He submits that a complaint was filed in utter violation of the provisions of the Code of Criminal Procedure and the complaint was referred under Section 156(3) of the Code of Criminal Procedure for registering a First Information Report. He submits that there was no application of mind in sending the complaint to the police under the provisions of Section 156(3) of the Code of Criminal Procedure. He submits that the order dated 3 22.12.2018, by which the complaint was sent under Section 156(3) of the Code of Criminal Procedure to the B.S. City Police for registering a First Information Report is not only cryptic, but, it is absolutely a non-speaking one. He further submits that if the complaint petition is seen (certified copy of the same has been filed), nowhere one could find any affidavit in terms of Section 154 of the Code of Criminal Procedure. He submits that since there is a violation and non-compliance of Section 154(1) and 154(3) of the Code of Criminal Procedure, the entire First Information Report is liable to be quashed. He submits that the meeting, which had taken between the parties, was to resolve a dispute, which is commercial in nature for which earlier Police Station Case No.86 of 2018 was registered. He submits that it would be evident from the complaint petition that an offer was made to pay Rs.10,00,000/- by way of compensation / amicable solution and a submission was put forth in turn to withdraw the criminal case. This fact of negotiation cannot be said to be an extortion and also by no stretch of imagination can be said to be a threat. He submits that there is nothing on record to suggest that the accused persons had put the complainant in fear of death to extort Rs.20,00,000/-. By referring to paragraph 11 of the complaint, it is submitted that there is no element of extortion, as it was merely an offer either to withdraw Sector IV Police Station Case No.86 of 2018 or to pay them the amount of Rs.20,00,000/- for settling the dispute. He submits that this cannot be said to be extortion by any means. Reference of incidence of 24.08.2018, which is at paragraph 15, clearly suggests that the amount of Rs.20,00,000/- was demanded for settling the dispute and nothing more. Lastly, it was submitted that since no offence is made out, First Information Report is liable to be quashed.
5. Mr. Rajendra Krishna, learned counsel appearing on behalf of the opposite party No.2 submits that from perusal of paragraphs 11 to 16 and 17 of the Complaint petition, a cognizable offence is definitely made out, thus, the Court was well within its jurisdiction to send the same for registering a First Information Report. He submits that since an offence is made out, the First Information Report cannot be quashed. He further submits that definitely the complainant was given threat and the petitioners demanded money, which clearly suggests that there was a threat of extortion. According to him, since an offence is made out the First Information Report cannot be quashed. It is also the case of the complainant that he received emails wherein money was 4 demanded for settling the dispute and some sarcastic comments were made from which he felt threatened.
6. A complaint was filed, which was sent under Section 156(3) of the Code of Criminal Procedure for registering a First Information Report. While I go through the complaint, I find that the said complaint is not accompanied by any affidavit. Section 154(1) of the Code of Criminal Procedure and Section 154(3) of the Code of Criminal Procedure are very important in this respect. As per the aforesaid sections of the Code of Criminal Procedure, every information relating to commission of cognizable offence has to be given orally or in writing to the Officer-in-Charge and the substance of such information shall be entered in the book kept in the office. This means a First Information Report has been lodged when the police received an information about cognizable offence. If there is a refusal to register a First Information Report, then the remedy lies in Section 154(3) of the Code of Criminal Procedure, wherein the aggrieved person may send the substance of such information in writing by post to the Superintendent of Police, who can investigate or direct an investigation, if according to him, a cognizable offence is made out. In this case, I find that nothing has been mentioned in the complaint, as to whether this provision of Section 154(1) or Section 154(3) was invoked. Rather, the counsel for the opposite party No.2 could not satisfy the Court on this question and also there is no whisper in the complaint petition about the same. Without exhausting the mandatory provisions, the complaint was filed, which was sent under Section 156(3) of the Code of Criminal Procedure.
7. Remedy available under Section 156(3) of the Code of Criminal Procedure is not routine in nature. It requires application of mind and a speaking order to be passed. The Hon'ble Supreme Court in the case of Priyanka Srivastava & Another versus the State of Uttar Pradesh & Others reported in (2015) 6 SCC 287, has dealt with this issue extensively. In the aforesaid judgment, the Hon'ble Court highlighted the importance of Section 154(1) and Section 154(3) of the Code of Criminal Procedure and has also dealt with the mis-use of the powers under Section 156(3) of the Code of Criminal Procedure. In paragraph 30 and 31 of the aforesaid judgment, the Hon'ble Supreme Court in detail, has held as to how the Court has to deal in this situation. Paragraphs 30 and 31 of the said judgment reads as under: -
30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the 5 Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations.
This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
8. This judgment in Priyanka Srivastava (supra) of the Hon'ble Supreme Court has been followed subsequently in Vikram Johar versus State of Uttar Pradesh & Another reported in (2019) SCC Online SC 609. Thus, I find that the order by which the Court had referred the complaint under Section 156(3) of the Code of Criminal Procedure is a non-speaking one and 6 the complaint itself does not comply with the preconditions as set forth in the aforesaid judgment, which is necessary for sending the complaint under Section 156(3) of the Code of Criminal Procedure.
9. Considering the aforesaid fact and position of law, order by which complaint was sent under Section 156(3) of the Code of Criminal Procedure is absolutely bad.
10. So far as merit of complaint is concerned, I find that the basic allegation is for settling previous dispute, i.e., Police Station Case No.86 of 2018, the parties met in a Hotel. From paragraph 7, it is clear that since long there was some dispute going on between the parties. In paragraph 8, it has been stated that accused No.2 has threatened the complainant that if the said case is not withdrawn, then the reputation of the complainant in his business will be hampered and the loss and damage will be beyond repair and if the case is withdrawn, then a compensation of Rs.10,00,000/- will be given to the complainant. In paragraph 10, it has also been mentioned that the accused No.1 dishonestly induced the complainant that he can turn the table and bring change in the scenario for which accused has to pay Rs.20,00,000/-. This offer and exchange went on between the parties during the talks of settlement, which took place in a hotel at Bokaro. I find that the complainant has only mentioned that because of this he felt threatened and he was in a fear of death. I find that this exchange of words cannot be said that there was any fear of death. Further this alleged demand of Rs.20,00,000/- or making an offer of Rs.10,00,000/- cannot be said to be an extortion or putting pressure. In course of arriving at a settlement, these offers were given. Section 383 of the Indian Penal Code defines extortion, which is as under: -
383 : - Extortion - Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security commits 'extortion'.
The essential ingredients of Section 383 of the Indian Penal Code are as under: -
(1) The accused must put any person in fear of injury to that person or any other person; (2) The putting of fear in such person must be intentional.7
(3) The accused must thereby induce the person so that in fear to deliver to any person any property, valuable security or anything so signed or sealed which may be converted into a valuable security; and (4) Such inducement must be done dishonestly.
As per the allegations in the complaint petition, there are no ingredients which in any manner can constitute the essential ingredients to constitute the offence under Section 383 of the Indian Penal Code.
11. Section 385 of the Indian Penal Code is defined as under:-
385 : - Putting person in fear of injury in order to commit extortion - Whoever, in order to the committing of extortion, puts any person in fear or attempts to put any person in fear, of any injury, shall be punished with imprisonment, which may extend to 2 years or with fine or both.
The essential ingredients of Section 385 of the Indian Penal Code are as under: -
(1) Accused put or attempted to put any person in fear of injury;
(2) He did so to commit extortion.
From the facts of this case, I also do not find any ingredients to attract Section 385 of the Indian Penal Code, as there is nothing to substantiate that there was a fear of injury. Mere putting a sentence that person was under fear of injury and life is not enough.
12. Section 387 of the Indian Penal Code reads as under:-
387 : - Putting person in fear of death or of grievous hurt in order to commit extortion - Whoever, in order to the committing of extortion, puts or attempts to put 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 7 years and shall also be liable to fine.
The essential ingredients of Section 387 of the Indian Penal Code are as under: -
8(1) Accused put some person or attempted to put some person in fear of death or grievous hurt; and (2) He did so to commit extortion.
On the facts of this case, as narrated above, the aforesaid Section is also not attracted.
13. Section 503 of the Indian Penal Code reads as under:-
503 : - Criminal Intimidation - Whoever, threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person or cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
The essential ingredients of Section 503 of the Indian Penal Code are as under: -
(1) Any person threatens another with -
a. Injury to his person, reputation or property; or b. To any other person in whom that person is interested;
(2) Such threat is with respect to do or to omit to do any act which that person is legally entitled to do;
From the allegations in the complaint petition, no offence under Section 503 of the Indian Penal Code even is made out as against the petitioners.
14. The Hon'ble Supreme Court in the case of State of Haryana & Others versus Bhajan Lal & Others reported in (1992) Supp (1) SCC 335 at paragraph 102 of the said judgment has framed various categories of cases by way of illustration for exercise of the extraordinary power under Article 226 of the Constitution of India or the exercise of inherent powers under Section 482 of the Code of Criminal Procedure, to prevent abuse of the process of any court or otherwise to secure the ends of justice. The said paragraph 102 of the said judgment reads as under: -
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 9 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 channelized 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 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 any 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.10
(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."
15. Thus, based on the discussions as above, in the light of the guidelines laid down by the Hon'ble Supreme Court in the case of Bhajan Lal (supra), I find that this case is a fit case and falls in Category (1) and (5) of the above guidelines laid down by the Hon'ble Supreme Court for exercise of inherent powers under Section 482 of the Code of Criminal Procedure. Accordingly, I am inclined to allow this criminal miscellaneous petition. The entire criminal proceeding in B.S. City Police Station Case No.05 of 2019, so far as it relates to the petitioners, abovenamed, is hereby quashed. All subsequent proceedings are also quashed.
16. This criminal miscellaneous petition, accordingly, stands allowed. I.A. No.5590 of 2019 also stands disposed of.
(Ananda Sen, J.) Kumar/Cp-03