Himachal Pradesh High Court
Shanti Swaroop And Other vs State Of H.P. And Another on 8 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 199 of 2022
.
Reserved on: 28.11.2023
Date of Decision: 08.01.2024.
Shanti Swaroop and other ...Petitioners
of
Versus
State of H.P. and another
rt ...Respondents
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr Sanjeev Bhushan, Sr. Advocate
with Mr. Rakesh Chauhan,
Advocate.
For the Respondents : Mr Jitender Sharma, Additional
Advocate General, for respondent
No.1-State.
Ms. Pragti, Advocate, for
respondent No. 2.
Rakesh Kainthla, Judge
Respondent No.2 (informant) made a complaint to
the police that he was married to petitioner No.3 on 8.3.2011. One
son, Anyun Sharma was born to the parties on 22.10.2016 in a
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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private hospital. The informant came to know after the birth of
his son that the parents of Umang Sharma (wife of the
.
petitioner) had mentioned that a girl Mishri Sharma was born to
Umang and the informant on 30.8.2012 at his home i.e. Bhagat
Kutir, Ward No.4, Vikas Nagar, Una. Shanti Swaroop, father-in-
law of the informant reported the birth of Mishri in Nagar
of
Panchayat, Chowari, in which report Suresh Kumar was shown
as the father of Mishri Sharma. Umang Sharma was present on
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duty on 30.8.2012, before that day and after that day. Umang
Sharma, Shant Swaroop and Vijay Kumari had forged the
documents in connivance with the Secretary of the Gram
Panchayat. Umang Sharma had taken maternity leave at the
time of the birth of Anyun Sharma, whereas no such leave was
taken at the time of the birth of Mishri. Whenever the informant
goes to Chowari to meet his son, Umang Sharma and her parents
do not allow him to enter the house. They threaten to call the
police and kill the informant and his mother. The police
registered the FIR based on the information of the informant.
2. The petitioners filed the present petition for seeking
quashing of the FIR. It was asserted that the marriage between
the informant and petitioner No.3 was solemnized on 8.3.2011.
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She was working on PTA basis in Chamba District. She continued
to live with her parents at Chowari. The informant was visiting
.
the petitioner No.3 in her parental home. The informant and
petitioner No.3 mutually decided to adopt a child. Smt. Guddo
Devi was pregnant and she had three children. She agreed to give
her child for adoption. The informant agreed to this proposal.
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Guddo Devi gave birth to a female child on 30.8.2012. The
informant asked the petitioner No.3 to bring the child to her
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home. He also advised her to get the name of the child registered
at Chowari. He also instructed that the name of the child should
not be entered into the family of Guddo Devi and no formal
adoption deed should be prepared. He was apprehensive that in
case the real facts came to the knowledge of the child, it would
affect her adversely. Petitioner No.3 got pregnant in the year
2016 and gave birth to a male child. The informant advised that
the name of the child should be registered at Chowari. The
informant started pressurising petitioner No.3 to hand over
Mishri Sharma to her parents. Petitioner No.3 did not agree to
this proposal. The informant reported the matter to the police.
He subsequently said that he had withdrawn the complaint filed
by him; however, the petitioners came to know from the
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summons that the complaint was not withdrawn and the challan
was filed before the Court. The police did not conduct the
.
investigation properly. The contents of the FIR do not disclose
the commission of the offence. The informant knew about the
facts and lodged a false FIR. The incident had not taken place at
Una and the police at Una had no jurisdiction to carry out the
of
investigation and file the challan. Learned CJM, Una also erred in
taking the cognizance. Hence, the present petition was filed for
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quashing of the FIR and the proceedings arising out of the same.
3. The police filed a status report reproducing the
contents of the FIR. It was asserted that the police conducted the
investigation and obtained the documents. The police filed an
application regarding the birth of Mishri Sharma and it was
reported by Block Medical Officer, Chowari that petitioner No.3
had not delivered any child in Civil Hospital, Chowari. The
comparison of the signatures of the father of petitioner No.3 was
made with the application form and it was found that they were
filled by the same person. It was found after the investigation
that Umang Sharma, Shanti Swaroop Sharma and Vijay Kumar
had mentioned the informant as the father of Mishri Sharma.
Umang Sharma was on duty in August and had not taken any
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maternity leave. Guddo Devi stated that Umang Sharma and her
parents had adopted the child when she was aged 12-15 days.
.
Her name was recorded as the child of the informant. The
offences punishable under Sections 420, 466, 468, 471, 506, and
120-B of IPC were made out against the accused. Hence, the
challan was presented and filed before the Court.
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4. Respondent No.2-informant also filed a reply
making a
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preliminary submission regarding lack of
maintainability. The contents of the petition were denied on
merits. It was asserted that the petitioner and the informant
were married on 8.3.2011. Petitioner No.3 was a widow, whereas
the informant was a divorcee. The informant was residing at
Una, whereas petitioner No.3 was serving at Dhadu. She was
residing in a rented accommodation near Chowari. The
informant used to visit petitioner No.3. A son was born to the
informant and petitioner No.3. The informant saw the child only
on some occasions. Many persons used to visit the house of
petitioner No.3 at that time. Subsequently, he came to know in
the year 2018 that petitioners had given the impression that the
child was born to the informant and petitioner No.3. Child is the
biological daughter of Guddo Devi. The admission form only
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mentions the contact number of petitioners No.2 and 3 and not
the name of the informant. The informant confronted the
.
petitioners and they said that they wanted to bring up the child.
They had used the name of the informant without his consent
and he has to accept that he is the father of the child. When the
informant refused, the petitioners did not allow him to meet his
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child. The informant never agreed to the adoption and a false
story was propounded. Therefore, it was prayed that the present
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petition be dismissed.
5. I have heard Mr Sanjeev Bhushan, learned Senior
Advocate assisted by Mr Rakesh Chauhan, Advocate for the
petitioners, Mr Jitender Sharma, learned Additional Advocate
General for respondent No. 1-State and Ms Pragti, learned
counsel for respondent no. 2.
6. Mr. Sanjeev Bhushan, learned Senior Counsel for the
petitioners submitted that as per the FIR, the incident had taken
place at Chowari. The police of Police Station Una had no
jurisdiction to carry out the investigation and submit the charge
sheet before the Court. The contents of the FIR even if accepted
to be correct, do not disclose the commission of any offence.
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Hence, he prayed that the present petition be allowed and the
FIR be quashed.
.
7. Mr. Jitender Sharma, learned Additional Advocate
General for respondent no.1-State submitted that the petitioners
in connivance with the biological parents of Mishri had
mentioned the name of the informant as the father which is not
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correct. Sufficient evidence was collected by the Investigating
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Agency to show that petitioner No.3 was on duty and could not
have given birth to any child. The petitioners also admitted in
their petition that Mishri Sharma was born to Guddo Devi and
not to petitioner No.3 which corroborates the version of the
informant that he was wrongly mentioned as the father of the
child. The challan has been presented before the Court and the
remedy of the petitioner is to approach the learned Trial Court
for seeking discharge. Hence, he prayed that the present petition
be dismissed.
8. Ms. Pragti, learned counsel for respondent No. 2
adopted the submissions made by the learned Additional
Advocate General for respondent no. 1-State and submitted that
the preparation of the forged document is not disputed. The
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question whether the name of the informant was mentioned as
the father of the child with his consent or not is a disputed
.
question of fact that cannot be decided while exercising
jurisdiction under Section 482 of Cr.P.C. Therefore, she prayed
that the present petition be dismissed.
9. I have given considerable thought to the submissions
of
at the bar and have gone through the records carefully.
10.
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The principles of exercising the jurisdiction under
Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme
Court in Supriya Jain v. State of Haryana, (2023) 7 SCC 711: 2023
SCC OnLine SC 765 wherein it was observed at page 716:-
"17. The principles to be borne in mind with regard to the
quashing of a charge/proceedings either in the exercise of
jurisdiction under Section 397CrPC or Section 482CrPC or
together, as the case may be, has engaged the attention of
this Court many a time. Reference to each and every
precedent is unnecessary. However, we may profitably
refer to only one decision of this Court where upon a
survey of almost all the precedents on the point, the
principles have been summarised by this Court succinctly.
In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh
Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1
SCC (Cri) 986], this Court laid down the following guiding
principles : (SCC pp. 482-84, para 27)
"27. ...27.1. Though there are no limits to the
powers of the Court under Section 482 of the Code
but the more the power, the more due care and
caution is to be exercised in invoking these powers.
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The power of quashing criminal proceedings,
particularly, the charge framed in terms of Section
228 of the Code should be exercised very sparingly
.
and with circumspection and that too in the rarest
of rare cases.
27.2. The Court should apply the test as to whether
the uncontroverted allegations as made from the
record of the case and the documents submitted
therewith prima facie establish the offence or not. If
the allegations are so patently absurd and
of
inherently improbable that no prudent person can
ever reach such a conclusion and where the basic
ingredients of a criminal offence are not satisfied
then the Court may interfere.
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27.3. The High Court should not unduly interfere.
No meticulous examination of the evidence is
needed for considering whether the case would end
in conviction or not at the stage of framing of
charge or quashing of charge.
27.4. Where the exercise of such power is absolutely
essential to prevent patent miscarriage of justice
and for correcting some grave error that might be
committed by the subordinate courts even in such
cases, the High Court should be loath to interfere, at
the threshold, to throttle the prosecution in the
exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in
any of the provisions of the Code or any specific law
in force to the very initiation or institution and
continuance of such criminal proceedings, such a
bar is intended to provide specific protection to an
accused.
27.6. The Court has a duty to balance the freedom of
a person and the right of the complainant or
prosecution to investigate and prosecute the
offender.
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27.7. The process of the court cannot be permitted
to be used for an oblique or ultimate/ulterior
purpose.
.
27.8. Where the allegations made and as they
appeared from the record and documents annexed
therewith predominantly give rise to and constitute
a "civil wrong" with no "element of criminality"
and does not satisfy the basic ingredients of a
criminal offence, the court may be justified in
quashing the charge. Even in such cases, the court
of
would not embark upon the critical analysis of the
evidence.
27.9. Another very significant caution that the courts
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have to observe is that it cannot examine the facts,
evidence and materials on record to determine
whether there is sufficient material on the basis of
which the case would end in a conviction; the court
is concerned primarily with the allegations taken as
a whole whether they will constitute an offence and,
if so, is it an abuse of the process of court leading to
injustice.
27.10. It is neither necessary nor is the court called
upon to hold a full-fledged enquiry or to appreciate
evidence collected by the investigating agencies to
find out whether it is a case of acquittal or
conviction.
27.11. Where allegations give rise to a civil claim and
also amount to an offence, merely because a civil
claim is maintainable, does not mean that a criminal
complaint cannot be maintained.
27.12. In the exercise of its jurisdiction under Section
228 and/or under Section 482, the Court cannot take
into consideration external materials given by an
accused for reaching the conclusion that no offence
was disclosed or that there was the possibility of his
acquittal. The Court has to consider the record and
documents annexed therewith by the prosecution.
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27.13. Quashing of a charge is an exception to the rule
of continuous prosecution. Where the offence is even
broadly satisfied, the Court should be more inclined
.
to permit a continuation of prosecution rather than
its quashing at that initial stage. The Court is not
expected to marshal the records with a view to
deciding the admissibility and reliability of the
documents or records but is an opinion formed
prima facie.
27.14. Where the chargesheet, reported under Section
of
173(2) of the Code, suffers from fundamental legal
defects, the Court may be well within its jurisdiction
to frame a charge.
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27.15. Coupled with any or all of the above, where the
Court finds that it would amount to an abuse of
process of the Code or that the interest of justice
favours, otherwise it may quash the charge. The
power is to be exercised ex debitojustitiaei. e. to do
real and substantial justice for the administration of
which alone, the courts exist.
***
27.16. These are the principles which individually
and preferably cumulatively (one or more) be taken
into consideration as precepts to exercise
extraordinary and wide plenitude and jurisdiction
under Section 482 of the Code by the High Court.
Where the factual foundation for an offence has
been laid down, the courts should be reluctant and
should not hasten to quash the proceedings even on
the premise that one or two ingredients have not
been stated or do not appear to be satisfied if there
is substantial compliance with the requirements of
the offence."
11. Similar is the judgment in Gulam Mustafa v. State of
Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-
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"26. Although we are not for verbosity in our judgments,
a slightly detailed survey of the judicial precedents is in
order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC
.
335, this Court held:
"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
of
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
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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
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.
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(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.
of
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
rt (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.
103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be exercised
very sparingly and with circumspection and that too in the
rarest of rare cases; that the court will not be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the FIR
or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court to
act according to its whim or caprice."(emphasis supplied)
12. It was laid down in CBI v. Aryan Singh, 2023 SCC
OnLine SC 379, that the High Court cannot conduct a mini-trial
while exercising jurisdiction under Section 482 Cr.P.C. The
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allegations are required to be proved during the trial based on
evidence led before the Court. It was observed:
.
"10. From the impugned common judgment and order
passed by the High Court, it appears that the High Court
has dealt with the proceedings before it, as if, the High
Court was conducting a mini-trial and/or the High Court
was considering the applications against the judgment
and order passed by the learned Trial Court on conclusion
of
of the trial. As per the cardinal principle of law, at the
stage of discharge and/or quashing of the criminal
proceedings, while exercising the powers under
Section 482 Cr. P.C., the Court is not required to conduct
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the mini-trial. The High Court in the common impugned
judgment and order has observed that the charges against
the accused are not proved. This is not the stage where
the prosecution/investigating agency is/are required to
prove the charges. The charges are required to be proved
during the trial on the basis of the evidence led by the
prosecution/investigating agency. Therefore, the High
Court has materially erred in going in detail in the
allegations and the material collected during the course
of the investigation against the accused, at this stage. At
the stage of discharge and/or while exercising the powers
under Section 482 Cr. P.C., the Court has very limited
jurisdiction and is required to consider "whether any
sufficient material is available to proceed further against
the accused for which the accused is required to be tried
or not".
11. One other reason pointed by the High Court is that the
initiation of the criminal proceedings/proceedings is
malicious. At this stage, it is required to be noted that the
investigation was handed over to the CBI pursuant to the
directions issued by the High Court. That thereafter, on
conclusion of the investigation, the accused persons have
been charge-sheeted. Therefore, the High Court has erred
in observing at this stage that the initiation of the
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criminal proceedings/proceedings is malicious. Whether
the criminal proceedings was/were malicious or not, is
not required to be considered at this stage. The same is
.
required to be considered at the conclusion of the trial. In
any case, at this stage, what is required to be considered
is a prima facie case and the material collected during the
course of the investigation, which warranted the accused
to be tried."
13. This position was reiterated in Abhishek v. State of
of
M.P. 2023 SCC OnLine SC 1083 wherein it was observed:
12. The contours of the power to quash criminal
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proceedings under Section 482 Cr. P.C. are well defined.
In V. Ravi Kumar v. State represented by Inspector of Police,
District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC
568], this Court affirmed that where an accused seeks
quashing of the FIR, invoking the inherent jurisdiction of
the High Court, it is wholly impermissible for the High
Court to enter into the factual arena to adjudge the
correctness of the allegations in the complaint.
In Neeharika Infrastructure (P). Ltd. v. State of
Maharashtra [Criminal Appeal No. 330 of 2021, decided on
13.04.2021], a 3-Judge Bench of this Court elaborately
considered the scope and extent of the power under
Section 482 Cr. P.C. It was observed that the power of
quashing should be exercised sparingly, with
circumspection and in the rarest of rare cases, such
standard not being confused with the norm formulated in
the context of the death penalty. It was further observed
that while examining the FIR/complaint, quashing of
which is sought, the Court cannot embark upon an
enquiry as to the reliability or genuineness or otherwise
of the allegations made therein, but if the Court thinks fit,
regard being had to the parameters of quashing and the
self-restraint imposed by law, and more particularly, the
parameters laid down by this Court in R.P. Kapur v. State of
Punjab (AIR 1960 SC 866) and State of Haryana v. Bhajan
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Lal [(1992) Supp (1) SCC 335], the Court would have
jurisdiction to quash the FIR/complaint.
14. It is apparent from these judgments that power
.
under Section 482 of Cr.P.C. can be exercised to prevent the
abuse of process or secure the ends of justice. The Court can
quash the F.I.R. if the allegations do not constitute an offence or
of
make out a case against the accused. However, it is not
permissible for it to conduct a mini-trial to arrive at such
findings.
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15. It was submitted that the police had conducted the
investigations and presented the challan. Hence, this Court
should not exercise its jurisdiction under Section 482 of Cr.P.C.
This submission is not acceptable. It was laid down by the
Hon'ble Supreme Court in Abhishek v. State of M.P., 2023 SCC
OnLine SC 1083 that the High Court will continue to exercise the
power even if the charge sheet has been filed. It was observed:
"11. This being the factual backdrop, we may note at the
very outset that the contention that the appellants' quash
petition against the FIR was liable to be dismissed, in any
event, as the chargesheet in relation thereto was
submitted before the Court and taken on file, needs
mention only to be rejected. It is well settled that the High
Court would continue to have the power to entertain and
act upon a petition filed under Section 482 Cr. P.C. to
quash the FIR even when a chargesheet is filed by the
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police during the pendency of such petition [See Joseph
Salvaraj A. v. State of Gujarat ((2011) 7 SCC 59)]. This
principle was reiterated in Anand Kumar Mohatta v. State
.
(NCT of Delhi), Department of Home [(2019) 11 SCC 706].
This issue, therefore, needs no further elucidation on our
part."
16. Thus, the submission that the power under Section
482 of Cr.P.C. cannot be exercised after filing of the charge sheet
of
is not acceptable.
17. It was submitted that the police at Una did not have
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any jurisdiction to investigate the matter. The incident had
taken place at Chowari and an investigation should not be
conducted by the police at Chowari. This submission is not
acceptable. It was laid down by the Hon'ble Supreme Court in
Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728
that SHO has a statutory authority to investigate any cognizable
offence and the investigation cannot be quashed on the ground
of lack of territorial jurisdiction. It was observed:-
"8. In our view, the submission made by the learned
counsel for the appellant requires to be accepted. The
limited question is whether the High Court was justified
in quashing the FIR on the ground that the Delhi Police
Station did not have territorial jurisdiction to investigate
the offence. From the discussion made by the learned
Judge, it appears that the learned Judge has considered
the provisions applicable to criminal trials. The High
Court arrived at the conclusion by appreciating the
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allegations made by the parties that the SHO, Police
Station Paschim Vihar, New Delhi was not having
territorial jurisdiction to entertain and investigate the FIR
.
lodged by the appellant because the alleged dowry items
were entrusted to the respondent at Patiala and that the
alleged cause of action for the offence punishable under
Section 498-A IPC arose at Patiala. In our view, the
findings given by the High Court are, on the face of it,
illegal and erroneous because:
(1) The SHO has statutory authority under Section 156
of
of the Criminal Procedure Code to investigate any
cognizable case for which an FIR is lodged.
(2) At the stage of investigation, there is no question of
interference under Section 482 of the Criminal
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Procedure Code on the ground that the
investigating officer has no territorial jurisdiction.
(3) After the investigation is over, if the investigating
officer arrives at the conclusion that the cause of
action for lodging the FIR has not arisen within his
territorial jurisdiction, then he is required to
submit a report accordingly under Section 170 of
the Criminal Procedure Code and to forward the
case to the Magistrate empowered to take
cognizance of the offence.
9. This would be clear from the following discussion.
Section 156 of the Criminal Procedure Code empowers
the police officer to investigate any cognizable offence.
It reads as under:
"156. Police officer's power to investigate cognizable
case.--(1) Any officer in charge of a police station
may, without the order of a Magistrate, investigate
any cognizable case which a court having
jurisdiction over the local area within the limits of
such station would have power to enquire into or
try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such
case shall at any stage be called in question on the
ground that the case was one which such officer
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was not empowered under this section to
investigate.
(3) Any Magistrate empowered under Section 190
.
may order such an investigation as above-
mentioned."
10. It is true that territorial jurisdiction also is prescribed
under sub-section (1) to the extent that the officer can
investigate any cognizable case which a court having
jurisdiction over the local area within the limits of such
police station would have power to enquire into or try
of
under the provisions of Chapter XIII. However, sub-
section (2) makes the position clear by providing that no
proceeding of a police officer in any such case shall at any
stage be called into question on the ground that the case
rt
was one which such officer was not empowered to
investigate. After the investigation is completed, the
result of such investigation is required to be submitted as
provided under Sections 168, 169 and 170. Section 170
specifically provides that if, upon an investigation, it
appears to the officer in charge of the police station that
there is sufficient evidence or reasonable ground of
suspicion to justify the forwarding of the accused to a
Magistrate, such officer shall forward the accused under
custody to a Magistrate empowered to take cognizance of
the offence upon a police report and to try the accused or
commit for trial. Further, if the investigating officer
arrives at the conclusion that the crime was not
committed within the territorial jurisdiction of the police
station, then the FIR can be forwarded to the police
station having jurisdiction over the area in which the
crime is committed. But this would not mean that in a
case which requires investigation, the police officer can
refuse to record the FIR and/or investigate it.
11. Chapter XIII of the Code provides for "jurisdiction of
the criminal courts in enquiries and trials". It is to be
stated that under the said chapter there are various
provisions which empower the court for enquiry or trial
of a criminal case and that there is no absolute
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prohibition that the offence committed beyond the local
territorial jurisdiction cannot be investigated, enquired or
tried. This would be clear by referring to Sections 177 to
.
188. For our purpose, it would suffice to refer only to
Sections 177 and 178 which are as under:
"177. Ordinary place of enquiry and trial.--Every
offence shall ordinarily be enquired into and tried by a
court within whose local jurisdiction it was committed.
178. Place of enquiry or trial.--(a) When it is
uncertain in which of several local areas an offence
of
was committed, or
(b) where an offence is committed partly in one
local area and partly in another, or
(c) where an offence is continuing one, and
rt
continues to be committed in more local areas than
one, or
(d) where it consists of several acts done in
different local areas,
it may be enquired into or tried by a court having
jurisdiction over any of such local areas."
12. A reading of the aforesaid sections would make it clear
that Section 177 provides for an "ordinary" place of
enquiry or trial. Section 178, inter alia, provides for place
of enquiry or trial when it is uncertain in which of several
local areas an offence was committed or where the
offence was committed partly in one local area and partly
in another and where it consisted of several acts done in
different local areas, it could be enquired into or tried by a
court having jurisdiction over any of such local areas.
Hence, at the stage of investigation, it cannot be held that
the SHO does not have territorial jurisdiction to
investigate the crime.
13. This Court in State of W.B. v. S.N. Basak [AIR 1963 SC 447
: (1963) 2 SCR 52] dealt with a similar contention wherein
the High Court had held that the statutory powers of
investigation given to the police under Chapter XIV were
not available in respect of an offence triable under the
West Bengal Criminal Law Amendment (Special Courts)
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21
Act, 1949 and hence the investigation was without
jurisdiction. Reversing the said finding, it was held thus:
"The powers of investigation into cognizable
.
offences are contained in Chapter XIV of the Code of
Criminal Procedure. Section 154 which is in that
chapter deals with information in cognizable
offences and Section 156 with the investigation into
such offences and under these sections the police
has the statutory right to investigate into the
circumstances of any alleged cognizable offence
of
without authority from a Magistrate and this
statutory power of the police to investigate cannot
be interfered with by the exercise of power under
Section 439 or the inherent power of the court
rt
under Section 561-A of the Criminal Procedure
Code. As to the powers of the judiciary in regard to
the statutory right of the police to investigate, the
Privy Council in King Emperor v. KhwajaNazir
Ahmad [(1944) 71 IA 203, 212: AIR 1945 PC 18] (IA at
p. 212) observed as follows--
'The functions of the judiciary and the
police are complementary, not overlapping
and the combination of individual liberty
with a due observance of law and order is
only to be obtained by leaving each to
exercise its own function, always, of course,
subject to the right of the court to intervene
in an appropriate case when moved under
Section 491 of the Criminal Procedure Code to
give directions in the nature of habeas
corpus. In such a case as the present,
however, the court's functions begin when a
charge is preferred before it, and not until
then. It has sometimes been thought that
Section 561-A has given increased powers to
the court which it did not possess before that
section was enacted. But this is not so. The
section gives no new powers, it only provides
that those which the court already inherently
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22
possesses shall be preserved and is inserted,
as their Lordships think, lest it should be
considered that the only powers possessed by
.
the court are those expressly conferred by the
Criminal Procedure Code and that no
inherent power had survived the passing of
that Act.'
With this interpretation, which has been put on the
statutory duties and powers of the police and of the
powers of the Court, we are in accord. The High Court was
of
in error therefore in interfering with the powers of the
police in investigating into the offence which was alleged
in the information sent to the officer in charge of the
police station."
rt
14. Further, the legal position is well settled that if an
offence is disclosed the court will not normally interfere
with an investigation into the case and will permit an
investigation into the offence alleged to be completed. If
the FIR, prima facie, discloses the commission of an
offence, the court does not normally stop the
investigation, for, to do so would be to trench upon the
lawful power of the police to investigate into cognizable
offences. [State of W.B. v. Swapan Kumar Guha, (1982) 1
SCC 561: 1982 SCC (Cri) 283] It is also settled by a long
course of decisions of this Court that for the purpose of
exercising its power under Section 482 CrPC to quash an
FIR or a complaint, the High Court would have to proceed
entirely on the basis of the allegations made in the
complaint or the documents accompanying the same per
se; it has no jurisdiction to examine the correctness or
otherwise of the allegations. [Pratibha Rani v. Suraj
Kumar, (1985) 2 SCC 370, 395 : 1985 SCC (Cri) 180]
15. Hence, in the present case, the High Court committed
a grave error in accepting the contention of the
respondent that the investigating officer had no
jurisdiction to investigate the matters on the alleged
ground that no part of the offence was committed within
the territorial jurisdiction of the police station at Delhi.
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23
The appreciation of the evidence is the function of the
courts when seized of the matter. At the stage of the
investigation, the material collected by an investigating
.
officer cannot be judicially scrutinized for arriving at a
conclusion that the police station officer of a particular
police station would not have territorial jurisdiction. In
any case, it has to be stated that in view of Section 178(c)
of the Criminal Procedure Code, when it is uncertain in
which of the several local areas an offence was
committed, or where it consists of several acts done in
of
different local areas, the said offence can be enquired into
or tried by a court having jurisdiction over any of such
local areas. Therefore, to say at the stage of the
investigation that the SHO, Police Station PaschimVihar,
rt
New Delhi was not having territorial jurisdiction, is on
the face of it, illegal and erroneous. That apart, Section
156(2) contains an embargo that no proceeding of a police
officer shall be challenged on the ground that he has no
territorial power to investigate. The High Court has
completely overlooked the said embargo when it
entertained the petition of Respondent 2 on the ground of
want of territorial jurisdiction.
18. It was held in Rasiklal Dalpatram Thakkar v. State of
Gujarat, (2010) 1 SCC 1 that once an investigation is commenced
under Section 156(1), it cannot be interrupted on the ground that
the Police Officer was not empowered. It was observed:-
24. From the aforesaid provisions it is quite clear that a
police officer in charge of a police station can, without the
order of a Magistrate, investigate any cognizable offence
which a court having jurisdiction over such police station
can inquire into or try under Chapter III of the Code. Sub-
section (2) of Section 156 ensures that once an
investigation is commenced under sub-section (1), the
same is not interrupted on the ground that the police
officer was not empowered under the section to
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24
investigate. It is in the nature of a "savings clause" in
respect of investigations undertaken in respect of
cognizable offences. In addition to the powers vested in a
.
Magistrate empowered under Section 190 CrPC to order
an investigation under sub-section (1) of Section 202
CrPC, sub-section (3) of Section 156 also empowers such
Magistrate to order an investigation on a complaint filed
before him.
26. In the instant case, the stage contemplated under
Section 181(4) CrPC has not yet been reached. Prior to
of
taking cognizance on the complaint filed by the Bank, the
learned Chief Metropolitan Magistrate, Ahmedabad had
directed an inquiry under Section 156(3) CrPC and as it
appears, a final report was submitted by the investigating
rt
agency entrusted with the investigation stating that since
the alleged transactions had taken place within the
territorial limits of the city of Mumbai, no cause of action
had arisen in the State of Gujarat and therefore, the
investigation should be transferred to the police agency
in Mumbai. There seems to be little doubt that the
Economic Offences Wing, State CID (Crime), which had
been entrusted with the investigation, had upon initial
inquiries recommended that the investigation be
transferred to the police agency of Mumbai.
27. In our view, both the trial court as well as the Bombay
High Court had correctly interpreted the provisions of
Section 156 CrPC to hold that it was not within the
jurisdiction of the investigating agency to refrain itself
from holding a proper and complete investigation merely
upon arriving at a conclusion that the offences had been
committed beyond its territorial jurisdiction.
28. A glance at the material before the Magistrate would
indicate that the major part of the loan transaction had,
in fact, taken place in the State of Gujarat and that having
regard to the provisions of sub-section (2) of Section 156
CrPC, the proceedings of the investigation could not be
questioned on the ground of jurisdiction of the officer to
conduct such investigation. It was open to the learned
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25
Magistrate to direct an investigation under Section 156(3)
CrPC without taking cognizance on the complaint and
where an investigation is undertaken at the instance of
.
the Magistrate, a police officer empowered under sub-
section (1) of Section 156 is bound, except in specific and
specially exceptional cases, to conduct such an
investigation even if he was of the view that he did not
have jurisdiction to investigate the matter.
29. Having regard to the law in existence today, we are
unable to accept Mr Syed's submissions that the High
of
Court had erred in upholding the order of the learned trial
Judge when the entire cause of action in respect of the
offence had allegedly arisen outside the State of Gujarat.
We are also unable to accept the submission that it was
rt
for the investigating officer in the course of the
investigation to decide whether a particular court had
jurisdiction to entertain a complaint or not.
30. It is the settled law that the complaint made in a
criminal case follows the place where the cause arises, but
the distinguishing feature in the instant case is that the
stage of taking cognizance was yet to arrive. The
investigating agency was required to place the facts
elicited during the investigation before the court in order
to enable the court to come to a conclusion as to whether
it had jurisdiction to entertain the complaint or not.
Without conducting such an investigation, it was
improper on the part of the investigating agency to
forward its report with the observation that since the
entire cause of action for the alleged offence had
purportedly arisen in the city of Mumbai within the State
of Maharashtra, the investigation should be transferred
to the police station concerned in Mumbai.
31. Section 156(3) CrPC contemplates a stage where the
learned Magistrate is not convinced as to whether the
process should issue on the facts disclosed in the
complaint. Once the facts are received, it is for the
Magistrate to decide his next course of action. In this
case, there are materials to show that the appellant had
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26
filed his application for a loan with the Head Office of the
Bank at Ahmedabad and that the processing and the
sanction of the loan was also done in Ahmedabad which
.
clearly indicates that the major part of the cause of action
for the complaints arose within the jurisdiction of the
Chief Metropolitan Magistrate, Ahmedabad. It was not,
therefore, desirable on the part of the investigating
agency to make an observation that it did not have
territorial jurisdiction to proceed with the investigation,
which was required to be transferred to the police station
of
having jurisdiction to do so.
32. On the materials before him the learned Magistrate
was fully justified in rejecting the final report submitted
by the Economic Offences Wing, State CID (Crime) and to
rt
order a fresh investigation into the allegations made on
behalf of the Bank. The High Court, therefore, did not
commit any error in upholding the views expressed by the
trial court. As mentioned hereinbefore, Section 181(4)
CrPC deals with the court's powers to inquire into or try
an offence of criminal misappropriation or of a criminal
breach of trust if the same has been committed or any
part of the property, which is the subject of the offence, is
received or retained within the local jurisdiction of the
said court.
33. The various decisions cited by Mr Syed, and in
particular the decision in Satvinder Kaur case [(1999) 8 SCC
728: 1999 SCC (Cri) 1503] provide an insight into the views
held by the Supreme Court on the accepted position that
the investigating officer was entitled to transfer an
investigation to a police station having jurisdiction to
conduct the same. The said question is not in issue before
us and as indicated hereinbefore, we are only required to
consider whether the investigating officer in respect of an
investigation undertaken under Section 156(3) CrPC can
file a report stating that he had no jurisdiction to
investigate into the complaint as the entire cause of
action had arisen outside his jurisdiction despite there
being material available to the contrary. The answer, in
our view, is in negative and we are of the firm view that
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27
the powers vested in the investigating authorities, under
Section 156(1) CrPC, did not restrict the jurisdiction of the
investigating agency to investigate into a complaint even
.
if it did not have territorial jurisdiction to do so. Unlike as
in other cases, it was for the court to decide whether it
had jurisdiction to entertain the complaint as and when
the entire facts were placed before it."
19. Even assuming that the police had no territorial
jurisdiction it will not take away the jurisdiction of the Court
of
taking the cognisance. In R.A.H. Siguran vs. Shankare Gowda 2017
(16) SCC 126, the proceedings were quashed by the High Court on
rt
the ground that the police officer who had conducted the
investigation was not competent to do so under provisions of the
Immoral Traffic (Prevention) Act, 1956. It was held by the
Hon'ble Supreme Court that the investigation could not have
been quashed on this ground. It was observed:
"It is well-settled law that even if the investigation is not
conducted by an authorized officer, the trial is not
vitiated unless prejudice is shown.
10. In H.N. Rishbud and Anr. v. The State of Delhi, AIR 1955
SC 196, (1955) 1 SCR 1150 the question considered by this
Court was whether after the court takes cognizance, a
trial can be held to be initiated merely on the ground that
investigation was invalid. Answering in the negative, this
Court held that if the plea of invalidity of investigation is
raised at a sufficiently early stage, the court, instead of
taking cognizance direct reinvestigation by the
competent investigating officer. But, after cognizance is
taken the trial cannot be quashed for invalidity of
investigation.
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28
11. The observations in the said judgment are:-
"9. The question then requires to be considered
whether and to what extent the trial which follows
.
such investigation is vitiated. Now, trial follows
cognizance and cognizance is preceded by the
investigation. This is undoubtedly the basic scheme
of the Code in respect of cognizable cases. But it
does not necessarily follow that an invalid
investigation nullifies the cognizance or trial based
thereon. Here we are not concerned with the effect
of
of the breach of a mandatory provision regulating
the competence or procedure of the Court as
regards cognizance or trial. It is only with reference
to such a breach that the question as to whether it
rt
constitutes an illegality vitiating the proceedings or
a mere irregularity arises. A defect or illegality in an
investigation, however serious, has no direct
bearing on the competence or the procedure
relating to cognizance or trial. No doubt a police
report which results from an investigation is
provided in section 190 of the Code of Criminal
Procedure as the material on which cognizance is
taken. But it cannot be maintained that a valid and
legal police report is the foundation of the
jurisdiction of the Court to take cognizance. section
190 of the Code of Criminal Procedure is one out of
a group of sections under the heading "Conditions
requisite for initiation of proceedings". The
language of this section is in marked contrast with
that of the other sections of the group under the
same heading i.e. Sections 193 and 195 to 199. These
latter sections regulate the competence of the Court
and bar its jurisdiction in certain cases excepting in
compliance therewith. But Section 190 does not.
While no doubt, in one sense, clauses (a), (b) and
(c) of Section 190(1) are conditions requisite for
taking of cognizance, it is not possible to say that
cognizance on an invalid police report is prohibited
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29
and is, therefore, a nullity. Such an invalid report
may still fall either under clause (a) or (b) of
Section 190(1), (whether it is the one or the other
.
we need not pause to consider) and in any case,
cognizance so taken is only in the nature of the
error in a proceeding antecedent to the trial. To
such a situation section 537 of the Code of Criminal
Procedure which is in the following terms is
attracted:
"Subject to the provisions hereinbefore
of
contained, no finding, sentence or order
passed by a Court of competent jurisdiction
shall be reversed or altered on appeal or
revision on account of any error, omission or
rt irregularity in the complaint, summons,
warrant, charge, proclamation, order,
judgment or other proceedings before or
during the trial or in any enquiry or other
proceedings under this Code, unless such
error, omission or irregularity, has, in fact,
occasioned a failure of justice."
If therefore, cognizance is in fact taken, on a police
report vitiated by the breach of a mandatory
provision relating to the investigation, there can be
no doubt that the result of the trial which follows it
cannot be set aside unless the illegality in the
investigation can be shown to have brought about a
miscarriage of justice. That illegality committed in
the course of investigation does not affect the
competence and the jurisdiction of the Court for
trial is well settled as appears from the cases in
Prabhu v. Emperor (AIR 1944 PC 73) and Lumbhardar
Zutshi v. King (AIR 1950 PC 26). These no doubt
relate to the illegality of arrest in the course of an
investigation while we are concerned in the present
cases with the illegality with reference to the
machinery for the collection of the evidence. This
distinction may have a bearing on the question of
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30
prejudice or miscarriage of justice, but both cases
clearly show that the invalidity of the investigation
has no relation to the competence of the Court. We
.
are, therefore, clearly, also, of the opinion that
where the cognizance of the case has in fact been
taken and the case has proceeded to termination,
the invalidity of the precedent investigation does
not vitiate the result, unless miscarriage of justice
has been caused thereby.
10. It does not follow, however, that the invalidity
of
of the investigation is to be completely ignored by
the Court during the trial. When the breach of such
a mandatory provision is brought to the knowledge
of the Court at a sufficiently early stage, the Court,
rt
while not declining cognizance, will have to take
the necessary steps to get the illegality cured and
the defect rectified, by ordering such
reinvestigation as the circumstances of an
individual case may call for. Such a course is not
altogether outside the contemplation of the scheme
of the Code as appears from Section 202 under
which a Magistrate taking cognizance on a
complaint can order an investigation by the police.
Nor can it be said that the adoption of such a course
is outside the scope of the inherent powers of the
Special Judge, who for purposes of procedure at the
trial is virtually in the position of a Magistrate
trying a warrant case. When the attention of the
Court is called to such an illegality at a very early
stage it would not be fair to the accused not to
obviate the prejudice that may have been caused
thereby, by appropriate orders, at that stage but to
leave him to the ultimate remedy of waiting till the
conclusion of the trial and of discharging the
somewhat difficult burden under section 537 of the
Code of Criminal Procedure of making out that such
an error has, in fact, occasioned a failure of justice.
It is relevant in this context to observe that even if
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31
the trial had proceeded to a conclusion and the
accused had to make out that there was, in fact, a
failure of justice as the result of such an error, an
.
explanation to section 537 of the Code of Criminal
Procedure indicates that the fact of the objection
having been raised at an early stage of the
proceeding is a pertinent factor. To ignore the
breach in such a situation when brought to the
notice of the Court would be virtually to make a
dead letter of the peremptory provision which has
of
been enacted on grounds of public policy for the
benefit of such an accused. It is true that the
peremptory provision itself allows an officer of a
lower rank to make the investigation if permitted
rt
by the Magistrate. But this is not an indication by
the Legislature that an investigation by an officer of
a lower rank without such permission cannot be
said to cause prejudice. When a Magistrate is
approached for granting such permission he is
expected to satisfy himself that there are good and
sufficient reasons for authorising an officer of a
lower rank to conduct the investigation. The
granting of such permission is not to be treated by a
Magistrate as a mere matter of routine but it is an
exercise of his judicial discretion having regard to
the policy underlying it. In our opinion, therefore,
when such a breach is brought to the notice of the
Court at an early stage of the trial the Court have to
consider the nature and extent of the violation and
pass appropriate orders for such reinvestigation as
may be called for, wholly or partly, and by such
officer, as it considers appropriate with reference to
the requirements of Section 5-A of the Act. It is in
the light of the above considerations that the
validity or otherwise of the objection as to the
violation of Section 5(4) of the Act has to be decided
and the course to be adopted in these proceedings,
determined."
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32
12. The above view has been repeatedly followed in
subsequent decisions of this Court. In Union of India and
Ors. represented through Superintendent of Police v. T.
.
Nathamuni, (2014) 16 SCC 285, the position was discussed
as follows:-
"12. It is clear that in the case of an investigation
under the Delhi Special Police Establishment Act,
an officer below the rank of Inspector cannot
investigate without the order of a competent
Magistrate. In the present case, the order of the
of
Special Judge was obtained by filing an application.
That order dated 24-9-2009 shows that it was
passed on request and in the interest of justice,
investigation pursuant to such order did not suffer
rt
from want of jurisdiction and hence, in the facts of
the case, the High Court erred in law in interfering
with such investigation more so when it was
already completed.
13. The question raised by the respondent is well
answered by this Court in a number of decisions
rendered from a different perspective. The matter
of investigation by an officer not authorised by law
has been held to be irregular. Indisputably, by the
order of the Magistrate investigation was
conducted by the Sub-Inspector, CBI who, after
completion of an investigation, submitted the
charge sheet. It was only during the trial, that an
objection was raised by the respondent that the
order passed by the Magistrate permitting the Sub-
Inspector, CBI to investigate is without jurisdiction.
Consequently, the investigation conducted by the
officer is vitiated in law. Curiously enough the
respondent has not made out a case that by reason
of the investigation conducted by the Sub-
Inspector a serious prejudice and miscarriage of
justice has been caused. It is well settled that the
invalidity of the investigation does not vitiate the
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33
result unless a miscarriage of justice has been
caused thereby.
14. In M.C. Sulkunte v. State of Mysore [(1970) 3 SCC
.
513], the main question raised by the appellant in an
appeal against the order of conviction was that the
sanction to investigate the offence given by the
Magistrate was not proper inasmuch as he had not
recorded any reason as to why he had given
permission to the Inspector of Police to investigate
the offence of criminal misconduct of obtaining
of
illegal gratification. Considering Section 5-A of the
Act, Their Lordships observed: (SCC p. 517, para 15)
rt "15. Although laying the trap was part of the
investigation and it had been done by a police
officer below the rank of a Deputy
Superintendent of Police, it cannot on that
ground be held that the sanction was invalid
or that the conviction ought not to be
maintained on that ground. It has been
emphasised in a number of decisions of this
Court that to set aside a conviction it must be
shown that there has been a miscarriage of
justice as a result of an irregular
investigation. The observations in State of
M.P. v. Mubarak Ali [1959 Supp (2) SCR 201], at
pp. 210-11 to the effect that when the
Magistrate without applying his mind only
mechanically issues the order giving
permission the investigation is tainted
cannot help the appellant before us."
15. In Muni Lal v. Delhi Admn [(1971) 2 SCC 48], this
Court was considering the question with regard to
the irregularity in an investigation for the offence
under the Prevention of Corruption Act. Following
earlier decisions, this Court held: (SCC p. 52, para
14)
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34
"14. From the above proposition it follows
that where cognizance of the case has in fact
been taken and the case has proceeded to
.
termination, the invalidity of the preceding
investigation will not vitiate the result unless
miscarriage of justice has been caused
thereby and the accused has been prejudiced.
Assuming in favour of the appellant, that
there was an irregularity in the investigation
and that Section 5-A of the Act was not
of
complied with in substance, the trial by the
Special Judge cannot be held to be illegal
unless it is shown that miscarriage of justice
rt has been caused on account of the illegal
investigation. The learned counsel for the
appellant has been unable to show us how
there has been any miscarriage of justice in
this case and how the accused has been
prejudiced by any irregular investigation."
16. In State of Haryana v. Bhajan Lal 1992 Supp (1)
SCC 335], this Court while considering Section 5-A
of the Act, held as under: (SCC pp. 384-85, para 119)
"119. It has been ruled by this Court in several
decisions that Section 5-A of the Act is
mandatory and not a directory and the
investigation conducted in violation thereof
bears the stamp of illegality but that illegality
committed in the course of an investigation
does not affect the competence and the
jurisdiction of the court for trial and where
the cognizance of the case has in fact been
taken and the case is proceeded to
termination, the invalidity of the preceding
investigation does not vitiate the result
unless miscarriage of justice has been caused
thereby. See (1) H.N. Rishbud v. State of Delhi
[AIR 1955 SC 196], (2) Major E.G. Barsay v. State
of Bombay [AIR 1961 SC 1762], (3) Munnalal v.
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35
State of U.P [AIR 1964 SC 28], (4) Sailendranath
Bose v. State of Bihar [AIR 1968 SC 1292], (5)
Muni Lal v. Delhi Admn. [(1971) 2 SCC 48] and
.
(6) Khandu Sonu Dhobi v. State of Maharashtra
[(1972) 3 SCC 786]. However, in Rishbud case
[AIR 1955 SC 196] and Muni Lal case [(1971) 2
SCC 48], it has been ruled that if any breach of
the said mandatory proviso relating to the
investigation is brought to the notice of the
court at an early stage of the trial, the court
of
will have to consider the nature and extent of
the violation and pass appropriate orders as
may be called for to rectify the illegality and
rt cure the defects in the investigation."
17. In A.C. Sharma v. Delhi Admn [(1973) 1 SCC 726],
provisions of Section 5-A were again considered by
this Court and held as under (SCC p. 735, para 15)
"15. As the foregoing discussion shows the
investigation in the present case by the
Deputy Superintendent of Police cannot be
considered to be in any way unauthorised or
contrary to the law. In this connection, it may
not be out of place also to point out that the
function of investigation is merely to collect
evidence and any irregularity or even
illegality in the course of collection of
evidence can scarcely be considered by itself
to affect the legality of the trial by an
otherwise competent court of the offence so
investigated. In H.N. Rishbud v. State of Delhi
[AIR 1955 SC 196], it was held that illegality
committed in the course of investigation does
not affect the competence and jurisdiction of
the court for trial and where cognizance of
the case has in fact been taken and the case
has proceeded to termination of the invalidity
of the preceding investigation does not
vitiate the result unless miscarriage of justice
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36
has been caused thereby. When any breach of
the mandatory provisions relating to the
investigation is brought to the notice of the
.
court at an early stage of the trial the Court
will have to consider the nature and extent of
the violation and pass appropriate orders for
such reinvestigation as may be called for,
wholly or partly, and by such officer, as it
considers appropriate with reference to the
requirements of Section 5A of the Prevention
of
of Corruption Act, 1947. This decision was
followed in Munnalal v. State of U.P. [AIR 1964
SC 28] where the decision in State of M.P. v.
rt Mubarak Ali [AIR 1959 SC 707], was
distinguished. The same view was taken in
State of A.P. v. N. Venugopal [AIR 1964 SC 33]
and more recently in Khandu Sonu Dhobi v.
State of Maharashtra [(1972) 3 SCC 786]. The
decisions of the Calcutta, Punjab and
Saurashtra High Courts relied upon by Mr
Anthony deal with different points: in any
event, to the extent, they contain any
observations against the view expressed by
this Court in the decisions just cited those
observations cannot be considered good law."
13. In view of the above, we are satisfied that the High
Court was not justified in quashing the proceedings
merely on the ground that the investigation was not valid.
It is not necessary for this Court to go into the question
raised by learned counsel for the appellants that there
was no infirmity in the investigation."
20. Therefore, it is not permissible to quash the
proceedings at this stage simply on the ground that it was not
conducted by a properly authorized person.
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37
21. The challan has been filed for the commission of
offences punishable under Sections 420, 466, 468, 471, 506 and
.
120-B of IPC on the premise that the admission form of Mishri
Sharma mentions the informant as her father, therefore, the
document is forged. This document was forged by the
petitioners and the forged document was used for cheating.
of
22. The term forgery has been defined in Section 463 of
IPC as under:
rt
"463. Forgery.--Whoever makes any false documents or
electronic record part of a document or electronic record
with, intent to cause damage or injury], to the public or
any person, or to support any claim or title, or to cause
any person to part with property, or to enter into any
express or implied contract, or with intent to commit
fraud or that fraud may be committed, commits forgery."
23. It is apparent from the definition that a person has to
make a false document before he can be said to have committed
forgery. Making a false document is defined in Section 464 of
IPC. It reads as under:
464. Making a false document.--A person is said to make
a false document or false electronic record--
First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document
or part of a document;
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38
(b) makes or transmits any electronic record or
part of any electronic record;
(c) affixes any electronic signature on any
.
electronic record;
(d) makes any mark denoting the execution of a
document or the authenticity of the electronic
signature,
with the intention of causing it to be believed that such
document or part of a document, electronic record
of
or electronic signature was made, signed, sealed,
executed, transmitted or affixed by or by the authority of
a person by whom or by whose authority he knows that it
was not made, signed, sealed, executed or affixed; or
rt
Secondly.--Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a
document or an electronic record in any material part
thereof, after it has been made, executed or affixed
with electronic signature either by himself or by any
other person, whether such person be living or dead at
the time of such alteration; or
Thirdly.--Who dishonestly or fraudulently causes any
person to sign, seal, execute or alter a document or an
electronic record or to affix his electronic signature on
any electronic record knowing that such person by reason
of unsoundness of mind or intoxication cannot, or that by
reason of deception practised upon him, he does not
know the contents of the document or electronic record
or the nature of the alteration.
24. It was laid down by the Hon'ble Supreme Court in
Mohammed Ibrahim versus State of Bihar 2009 (8) SCC 751 that
the prosecution is required to prove that the accused had forged
a document by creating a false document to establish the offence
of forgery. A false document is when a document is executed
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39
claiming to be executed by someone else or authorised by
someone else or a document is tampered or signatures are
.
obtained by practising deception. It was observed:-
"[10] An analysis of section 464 of the Penal Code shows
that it divides false documents into three categories:
10.1) The first is where a person dishonestly or
fraudulently makes or executes a document with
of
the intention of causing it to be believed that such
document was made or executed by some other
person, or by the authority of some other person, by
whom or by whose authority he knows it was not
rt
made or executed.
10.2) The second is where a person dishonestly or
fraudulently, by cancellation or otherwise, alters a
document in any material part, without lawful
authority, after it has been made or executed by
either himself or any other person.
10.3) The third is where a person dishonestly or
fraudulently causes any person to sign, execute or
alter a document knowing that such person could
not because of (a) unsoundness of mind; or (b)
intoxication; or (c) deception practised upon him,
know the contents of the document or the nature of
the alteration.
[11] In short, a person is said to have made a 'false
document', if (i) he made or executed a document
claiming to be someone else or authorised by
someone else; or (ii) he altered or tampered with a
document; or (iii) he obtained a document by
practising deception, or from a person not in
control of his senses."
25. In the cited case, the prosecution alleged that the
accused had executed a sale deed regarding the property over
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40
which he had no right. It was held by the Hon'ble Supreme Court
that there is a distinction between a document whose contents
.
are false and a document which is itself false within the
definition of Section 464 of IPC. A document containing false
averment does not attract the provision of Criminal Law and the
accused cannot be held liable for executing the sale deed by
of
claiming to be the owner when he was not the owner. It was
observed:- rt
"[12] The sale deeds executed by the first appellant,
clearly and obviously do not fall under the second and
third categories of 'false documents'. It, therefore,
remains to be seen whether the claim of the complainant
that the execution of sale deeds by the first accused, who
was in no way connected with the land, amounted to
committing forgery of the documents with the intention
of taking possession of complainant's land (and that
accused 2 to 5 as the purchaser, witness, scribe and stamp
vendor colluded with first accused in execution and
registration of the said sale deeds) would bring the case
under the first category. There is a fundamental
difference between a person executing a sale deed
claiming that the property conveyed is his property, and a
person executing a sale deed by impersonating the owner
or falsely claiming to be authorised or empowered by the
owner, to execute the deed on the owner's behalf. When a
person executes a document conveying a property
describing it as his, there are two possibilities. The first is
that he bonafide believes that the property actually
belongs to him. The second is that he may be dishonestly
or fraudulently claiming it to be his even though he
knows that it is not his property. But to fall under the first
category of 'false documents', it is not sufficient that a
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41
document has been made or executed dishonestly or
fraudulently. There is a further requirement that it should
have been made with the intention of causing it to be
.
believed that such document was made or executed by, or
by the authority of a person, by whom or by whose
authority he knows that it was not made or executed.
When a document is executed by a person claiming a
property which is not his, he is not claiming that he is
someone else nor is he claiming that he is authorised by
someone else. Therefore, execution of such a document
of
(purporting to convey some property of which he is not
the owner) is not an execution of a false document as
defined under section 464 of the Code. If what is executed
is not a false document, there is no forgery. If there is no
rt
forgery, then neither section 467 nor section 471 of the
Code is attracted".
26. In Mir Nagvi Askari Vs CBI 2009 (15) SCC 643 the
accused was charged with making false entries in the record of
the bank. It was laid down by the Hon'ble Supreme Court that
making wrong entries by itself will not attract criminal liability
unless it is proved that the document was false within the
meaning of Section 464 of IPC. It was observed:-
"[229] A person is said to make a false document or
record if he satisfies one of the three conditions as
noticed hereinbefore and provided for under the said
section. The first condition being that the document has
been falsified with the intention of causing it to be
believed that such document has been made by a person,
by whom the person falsifying the document knows that
it was not made. Clearly, the documents in question in the
present case, even if it be assumed to have been made
dishonestly or fraudulently, had not been made with the
intention of causing it to be believed that they were made
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42
by or under the authority of someone else.
[230] The second criterion of the section deals with a case
where a person without lawful authority alters a
.
document after it has been made. There has been no
allegation of alteration of the voucher in question after
they have been made. Therefore in our opinion, the
second criterion of the said section is also not applicable
to the present case.
[231] The third and final condition of Section 464 deals
with a document, signed by a person who due to his
of
mental capacity does not know the contents of the
documents which were made i.e because of intoxication
or unsoundness of mind etc. Such is also not the case
before us. Indisputably therefore the accused before us
rt
could not have been convicted for the making of a false
document.
[232] The learned Special Judge, therefore, in our
opinion, erred in holding that the accused had prepared a
false document, which clearly, having regard to the
provisions of the law, could not have been done.
[233] Further, the offence of forgery deals with the
making of a false document with the specific intentions
enumerated therein. The said section has been
reproduced below.
"463. Forgery.--Whoever makes any false
documents or electronic record part of a document
or electronic record with, intent to cause damage or
injury], to the public or any person, or to support
any claim or title, or to cause any person to part
with property, or to enter into any express or
implied contract, or with intent to commit fraud or
that fraud may be committed, commits forgery."
[234] However, since we have already held that the
commission of the said offence has not been convincingly
established, the accused could not have been convicted for
the offence of forgery. The definition of "false document"
is a part of the definition of "forgery". Both must be read
together. [Dr. Vimla v. Delhi Administration, 1963 Supp2 SCR
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43
585]".
27. It was further held that in the absence of the
.
document being forged a person cannot be convicted of the
commission of an offence punishable under Section 471 of IPC. It
was observed:-
"[235] Accordingly, the accused could not have been tried
of
for an offence under Section 467 which deals with forgery
of valuable securities, will etc. or Section 471, i.e., using as
genuine a forged document or Section 477-A, i.e,
falsification of accounts. The conviction of the accused
rt
for the said offences is accordingly set aside".
28. This question was also considered in Sheila Sebastian
versus R Jawaharaj & Anr ETC. 2018 (7) SCC 581 and it was held
that unless the ingredients of Section 464 of IPC are satisfied a
person cannot be convicted for the commission of an offence
punishable under Section 465 of IPC. It was observed:-
"[26] The definition of "false document" is a part of the
definition of "forgery". Both must be read together.
'Forgery' and 'Fraud' are essentially matters of evidence
which could be proved as a fact by direct evidence or by
inferences drawn from proved facts. In the case at hand,
there is no finding recorded by the trial Court that the
respondents have made any false document or part of the
document/record to execute the mortgage deed under the
guise of that 'false document'. Hence, neither respondent
no.1 nor respondent no.2 can be held as makers of the
forged documents. It is the imposter who can be said to
have made the false document by committing forgery. In
such an event the trial court, as well as the appellate
court, misguided themselves by convicting the accused.
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44
Therefore, the High Court has rightly acquitted the
accused based on the settled legal position and we find no
reason to interfere with the same".
.
29. In the present case, the allegations in the complaint
are that the contents of the admission form are false inasmuch
as they mention the informant as the father which is an
incorrect fact. Even if it is accepted to be correct, the same will
of
not make the document a forged document since there is no
allegation that it was purported to be written by some person by
rt
whom it was not written or that it was altered after it was
written or its execution was obtained under the circumstances
enumerated in Section 465 of IPC. Therefore, the document does
not specify the requirement of it being a forged document.
Hence, the offences punishable under Sections 466, 468, and
477 of IPC are not made out as per the allegations made in the
FIR even assuming them to be correct.
30. The ingredients of cheating were explained by the
Hon'ble Supreme Court in S.W. Palanitkar v. State of Bihar, (2002)
1 SCC 241 as under:
"10. The ingredients of an offence of cheating are: (i)
there should be fraudulent or dishonest inducement of a
person by deceiving him, (ii)(a) the person so deceived
should be induced to deliver any property to any person
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45
or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally
induced to do or omit to do anything which he would not
.
do or omit if he were not so deceived; and (iii) in cases
covered by (ii)(b), the act of omission should be one
which causes or is likely to cause damage or harm to the
person induced in body, mind, reputation or property.
11. One of us (D.P. Mohapatra, J.), speaking for the Bench,
in HridayaRanjan Prasad Verma v. State of Bihar [(2000) 4
of
SCC 168: 2000 SCC (Cri) 786] on facts of that case, has
expressed thus: (SCC p. 177, para 15)
"15. In determining the question it has to be kept in
mind that the distinction between mere breach of
rt
contract and the offence of cheating is a fine one. It
depends upon the intention of the accused at the
time of inducement which may be judged by his
subsequent conduct but for this subsequent
conduct is not the sole test. Mere breach of contract
cannot give rise to criminal prosecution for
cheating unless fraudulent or dishonest intention is
shown right at the beginning of the transaction,
that is the time when the offence is said to have
been committed. Therefore it is the intention which
is the gist of the offence. To hold a person guilty of
cheating it is necessary to show that he had fraudulent
or dishonest intention at the time of making the
promise. From his mere failure to keep up promise
subsequently such a culpable intention right at the
beginning, that is, when he made the promise cannot
be presumed."
(emphasis supplied)
12. Finding that the ingredients of the offence of cheating
and its allied offences had not been made out, this Court
interfered with the order of the High Court and quashed
the criminal proceedings.
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46
13. In G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693: 2000 SCC
(Cri) 733] this Court in para 7 has stated thus: (SCC pp.
696-97)
.
"7. As mentioned above, Section 415 has two parts.
While in the first part, the person must
'dishonestly' or 'fraudulently' induce the
complainant to deliver any property; in the second
part, the person should intentionally induce the
complainant to do or omit to do a thing. That is to
of
say, in the first part, inducement must be dishonest
or fraudulent. In the second part, the inducement
should be intentional. As observed by this Court
in JaswantraiManilalAkhaney v. State of Bombay [AIR
rt
1956 SC 575: 1956 Cri LJ 1116] a guilty intention is an
essential ingredient of the offence of cheating. In
order, therefore, to secure the conviction of a
person for the offence of cheating, 'mens rea' on the
part of that person, must be established. It was also
observed in Mahadeo Prasad v. State of W.B. [AIR
1954 SC 724: 1954 Cri LJ 1806] that in order to
constitute the offence of cheating, the intention to
deceive should be in existence at the time when the
inducement was offered."
(emphasis supplied)
14. In Trisuns Chemical Industry v. Rajesh Agarwal [(1999) 8
SCC 686: 2000 SCC (Cri) 47] dealing with the effect of
existence of arbitration clause in the agreement on
criminal prosecution on the ground that civil proceedings
are also maintainable, this Court has held that quashing
of FIR or a complaint exercising power under Section 482
CrPC should be limited to a very extreme exception;
merely because an act has a civil profile is not enough to
stop action on the criminal side. It is further held that a
provision made in the agreement for referring the
disputes to arbitration is not an effective substitute for a
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47
criminal prosecution when the disputed act constitutes a
criminal offence.
31. A similar view was taken in G.V. Rao v. L.H.V. Prasad,
.
(2000) 3 SCC 693 as under:
"4. "Cheating" is defined in Section 415 of the Penal
Code, 1860 which provides as under:
"415. Cheating.--Whoever, by deceiving any person,
of
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to
consent that any person shall retain any property,
or intentionally induces the person so deceived to
rt
do or omit to do anything which he would not do or
omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or
property, is said to 'cheat'.
Explanation.--A dishonest concealment of facts is a
deception within the meaning of this section."
5. The High Court quashed the proceedings principally on
the ground that Chapter XVII of the Penal Code, 1860
deals with the offences against properties and, therefore,
Section 415 must also necessarily relate to the property
which, in the instant case, is not involved and,
consequently, the FIR was liable to be quashed. The broad
proposition on which the High Court proceeded is not
correct. While the first part of the definition relates to
property, the second part does not necessarily relate to
property. The second part is reproduced below:
"415. ... intentionally induces the person so
deceived to do or omit to do anything which he
would not do or omit if he were not so deceived, and
which act or omission causes or is likely to cause
damage or harm to that person in body, mind,
reputation or property, is said to 'cheat'."
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48
6. This part speaks of intentional deception which must
be intended not only to induce the person deceived to do
or omit to do something but also to cause damage or
.
harm to that person in body, mind, reputation or
property. The intentional deception presupposes the
existence of a dominant motive of the person making the
inducement. Such inducement should have led the person
deceived or induced to do or omit to do anything which he
would not have done or omitted to do if he were not
deceived. The further requirement is that such an act or
of
omission should have caused damage or harm to body,
mind, reputation or property.
7. As mentioned above, Section 415 has two parts. While
rt
in the first part, the person must "dishonestly" or
"fraudulently" induce the complainant to deliver any
property; in the second part, the person should
intentionally induce the complainant to do or omit to do a
thing. That is to say, in the first part, inducement must be
dishonest or fraudulent. In the second part, the
inducement should be intentional. As observed by this
Court in JaswantraiManilalAkhaney v. State of Bombay [AIR
1956 SC 575: 1956 Cri LJ 1116: 1956 SCR 483] a guilty
intention is an essential ingredient of the offence of
cheating. In order, therefore, to secure the conviction of a
person for the offence of cheating, "mens rea" on the part
of that person, must be established. It was also observed
in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724: 1954
Cri LJ 1806] that in order to constitute the offence of
cheating, the intention to deceive should be in existence
at the time when the inducement was offered.
8. Thus, so far as the second part of Section 415 is
concerned, "property", at no stage, is involved. Here it is
the doing of an act or omission to do an act by the
complainant, as a result of intentional inducement by the
accused, which is material. Such inducement should
result in the doing of an act or omission to do an act as a
result of which the person concerned should have
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49
suffered or was likely to suffer damage or harm in body,
mind, reputation or property. In an old decision of the
Allahabad High Court in Empress v. Sheoram [(1882) 2
.
AWN 237], it was held by Mahmood, J.:
"That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in Section 416 of the Penal Code, 1860, of which must be read in the light of the preceding Section 415."
32. In the present case, there is nothing to show which rt person was induced to deliver any property. Even if it is accepted as correct that a misrepresentation was made regarding the paternity of a girl, there is no evidence the school would not have given admission to her but for the representation made in the admission form. No other fact was disclosed that the accused had made a misrepresentation of any kind to any person and that person was induced to deliver the property to the petitioners.
33. The FIR has also been lodged for the commission of an offence punishable under Section 506 of IPC.
34. Criminal intimidation is provided in Section 503 of IPC as under:-
503. Criminal intimidation ::: Downloaded on - 08/01/2024 20:37:14 :::CIS 50 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 to 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.
Explanation-A threat to injure the reputation of any deceased person in whom the person threatened is of interested is within this section.
35. It is apparent from the bare perusal of this Section rt that a person should have threatened another with injury to his person, reputation or property, or the person or reputation of any person to whom that person is interested. Such threat of injury should have been with an intent to cause alarm to a person, to do an act, which a person is not legally bound to do or omit to do any act which he is legally entitled to do. The complainant did not state that any alarm was caused in his mind. He has not stated that he was prevented from doing something, which he was legally bound to do or omitted to do.
Hence, the necessary ingredient of Section 503 of IPC is not satisfied.
36. It was laid down by this Court in Inder Pratap Singh Versus State of Himachal Pradesh 2003 (1) Crimes 345 (HC)that the ::: Downloaded on - 08/01/2024 20:37:14 :::CIS 51 complainant should have been alarmed by the threat advanced by the accused to attract Section 506 of IPC. It was observed:
.
21. Similarly, before an offence of criminal intimidation can be made out, it must be established prima facie, that the accused persons (like petitioners in the present case), intended to cause an alarm to the complainant party i. e., Jasbeer Singh. Mere threats, as alleged by him, extended by the petitioners, with a view to deter the complainant of from interfering with what the petitioner believed to be his exclusive property would not constitute an offence of criminal intimidation.
37. Similar is the judgment of Hon'ble Supreme Court in rt Vikram Johar Versus State of Uttar Pradesh & Anr 2019 (14) SCC 207 wherein it was held:-
[24] In another judgment, i.e., Manik Taneja and Another vs. State of Karnataka and Another, 2015 7 SCC 423, this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, the case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal intimidation, this Court laid down the following in paragraphs Nos. 11 and 12:-
"11. Xxxxxxxxxxxxx A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.::: Downloaded on - 08/01/2024 20:37:14 :::CIS 52
12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from .
discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with the intention to cause alarm to the complainant to cause that person to do or omit to do of any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But the rtmaterial has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in the discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC."
[25] In the above case, an allegation was that the appellant had abused the complainant. The Court held that the mere fact that the allegation that the accused had abused the complainant does not satisfy the ingredients of Section 506.
xxxx [27] Now, reverting back to Section 506, which is an offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when the question of finding out whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are the ingredients ::: Downloaded on - 08/01/2024 20:37:14 :::CIS 53 which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edition with regard to proof of offence states the following: -
.
"....The prosecution must prove:
(i) That the accused threatened some person.
(ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of someone in whom he was interested;
of
(iii) That he did so with the intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a rt means of avoiding the execution of such threat."
A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.
38. This position was reiterated in Mohammad Wajid Vs. State of U.P. 2023 SCC Online SC 951 and it was held that the intent to cause alarm to another is necessary to attract the offence punishable under section 506 og IPC. It was observed:-
26. Section 506 reads thus:--
"Section 506. Punishment for criminal intimidation. -- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with a fine, or with both;
If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with ::: Downloaded on - 08/01/2024 20:37:14 :::CIS 54 imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
27. An offence under Section 503 has the following .
essentials:--
1) Threatening a person with any injury;
(i) to his person, reputation or property; or
(ii) to the person, or reputation of anyone in whom that person is interested.
2) The threat must be with intent;
of
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not legally bound to do as the means of rt avoiding the execution of such threat; or
(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
28. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised self-control or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted ::: Downloaded on - 08/01/2024 20:37:14 :::CIS 55 by Section 504, IPC, the court has to find out what, in ordinary circumstances, would be the effect of the abusive language used and not what the complainant .
actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.
of
29. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a rt breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant. In King Emperor v. ChunnibhaiDayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:--
"To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds." (Emphasis supplied)
30. A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant.
::: Downloaded on - 08/01/2024 20:37:14 :::CIS 5639. In the present case, the complaint does not mention that any alarm was intended to be caused or was in fact caused.
.
The allegations are happily vague. It was only mentioned that whenever the informant goes to Chowari to meet his son, the petitioners do not permit him to enter inside the house. They quarrel with him, abuse him and threaten to call the police. They of also threaten to kill him and his mother. The date, time and place of the incident were not mentioned. It was also not rt mentioned which of the petitioners had abused the informant or had given threats as mentioned in the complaint. It was also not mentioned that any alarm was caused to the informant by the threats advanced by the petitioners. Therefore, the ingredients of Section 506 of IPC are also not satisfied.
40. The FIR has also been lodged for the commission of an offence punishable under Section 120-B of IPC, however, it has not been mentioned as to what kind of illegal act was done by the petitioners. If the illegal act was entering the name of the informant in the school record of Mishri, the same is not an offence as shown above. Hence, no offence punishable under Section 120-B of IPC is made out.
::: Downloaded on - 08/01/2024 20:37:14 :::CIS 5741. In view of the above, the complaint does not disclose the commission of any cognisable offence. Consequently, the .
present petition is allowed and FIR No. 360 of 2018, dated 22.7.2018, under Sections 420, 467, 468, 471, 506 and 120-B of IPC, registered at Police Station Una, District Una, H.P. and the consequent proceedings arising out of the same are ordered to of be quashed.
rt (Rakesh Kainthla)
Judge
8th January, 2024
(Chander)
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