THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL REVISION CASE No.273 of 2018
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of Cr.P.C., is filed by the petitioner/accused, challenging the judgment, dated 07.12.2017, passed in Criminal Appeal No.101 of 2017 by the Principal Sessions Judge at Mahabubnagar, whereby, the Court below, while setting aside the conviction and sentence recorded against the petitioner/accused of the offences under Sections 228, 353 and 504 of IPC vide judgment, dated 12.10.2017, passed in C.C.No.117 of 2010 on the file of the Judicial Magistrate of First Class, Special Mobile Court, Mahabubnagar, confirmed the conviction and sentence imposed against the petitioner/accused of the offence under Section 506 of IPC.
2. I have heard the submissions of Sri Pottigari Sridhar Reddy, learned counsel for the petitioner/accused, the learned Assistant Public Prosecutor representing the respondents/State and perused the record.
3. The case of the prosecution, in a nutshell, is as follows:-
On 20.05.2009, PW.1/Principal District and Sessions Judge, Mahabubnagar lodged a report vide Ex.P1 with the Superintendent of Police, Mahabubnagar, stating that on the even date at about 01:20 2 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018 PM, he received a phone call from the petitioner/accused on his official cell phone bearing No.9440621496 abusing him in vulgar language and caused disturbance in discharge of his Court work and on verification, the phone call was received from phone bearing No.9642679242.
4. On receipt of Ex.P1 report, the Superintendent of Police, Mahabubnagar, directed the Circle Inspector, Mahabubnagar, to register a case and investigate and to arrest the petitioner/accused. The Circle Inspector, in turn, directed the Sub Inspector of Police, II Town Police Station, Mahabubnagar, to register a case and investigate into. As per the contents of Ex.P1, PW.5 made a GD entry, as the contents of Ex.P1 discloses non-cognizable offences and addressed a letter to Judicial Magistrate of First Class, Mahabubnagar, for permission to register and investigate the case. The Magistrate accorded permission, whereupon, a case in crime No.80 of 2009 for the offences under Sections 504, 506, 228 of IPC was registered against the petitioner/accused.
5. During investigation, PW.5 examined and recorded the statements of PWs.1 to 3 and arrested the petitioner/accused on 23.06.2009. During interrogation, the petitioner/accused confessed the offence along with offence in Crime No.79 of 2009 of II Town Police Station, Mahabubnagar. The petitioner/accused was produced 3 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018 before the Court and was remanded to judicial custody. Thereafter, upon request of PW.5, the Superintendent of police, addressed a letter to the General Manager, BSNL, Telephone Bhavan, Hyderabad, to furnish the call details of phone bearing No.964267924 from 19.05.2009 to 21.05.2009 and also to furnish the ID particulars of the said phone number and also to furnish ID proof of mobile bearing number 9440621496. Further, the SDPO, Mahabubnagar, addressed a letter to the Manager, Vodafone, Hyderabad, to provide ID proof of cell phone bearing No.9642679242. During the investigation, PW.5 visited Hyderabad, examined and recorded the statement of PW.4 and after completion of investigation, laid charge sheet against the petitioner/accused for the offences punishable under Sections 504, 506, 228, 353 of IPC.
6. The trial Court took cognizance against the petitioner/accused for the offences punishable under Sections 504, 506, 228, 353 of IPC. On appearance of the petitioner/accused, copies of documents were furnished to him as per Section 207 Cr.P.C. and was examined under Section 251 Cr.P.C for which, the petitioner/accused pleaded not guilty and claimed to be tried.
7. For bringing home the guilt of the petitioner/accused, the prosecution examined PWs.1 to 5 and got marked Ex.P1 to P9. PW.1 is the de facto complainant. PWs.2 and 3 are the eye witnesses.
4 Justice Juvvadi Sridevi
Crl.R.C.No.273 of 2018
PW4 is a circumstantial witness. PW.5 is the investigating officer.
Ex.P1 is the report. Ex.P2 is the statement of PW.4 recorded under Section 164 of Cr.P.C. Ex.P3 is the letter addressed by PW.5 to the Judicial Magistrate of First Class, Mahabubnagar, for permission to register and investigate the case, vide Dis.No.723. Ex.P4 is the FIR. Ex.P5 is the letter addressed by PW.5 to the Superintendent of Police with a request to address a letter to the General Manager, BSNL, Hyderabad. Ex.P6 is the letter addressed by the Superintendent of Police, Mahabubnagar to the General Manager, Telephone Bhavan, Hyderabad. Ex.P7 is the letter addressed by the SDPO, Mahabubnagar, to the Manager, Vodafone, Hyderabad. Ex.P8 is the customer name for mobile No.9642679242 furnished by Vodafone, Hyderabad. Ex.P9 is the call details of phone No.9440621496 from 19.05.2009 to 21.05.2009, furnished by BSNL.
8. After closure of the prosecution evidence, when the petitioner/accused was examined under Section 313 of Cr.P.C., he denied the allegations and reported no defence evidence on his side.
9. The trial Court, having considered the submissions made and analyzed the evidence on record, found the petitioner/accused guilty of the offences under Sections 504, 506, 228 and 353 of IPC and sentenced him as stated supra. Aggrieved by the same, the petitioner/accused preferred the subject Criminal Appeal No.101 of 5 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018 2017 before the Court below and the Court below, on re-appreciation of the evidence on record, set aside the conviction and sentence recorded against the petitioner/accused of the offences under Sections 228, 353 and 504 of IPC and confirmed the sentence and conviction recorded against the petitioner/accused of the offence under Section 506 of IPC. Challenging the same, the petitioner/accused filed this Criminal Revision Case.
10. Learned counsel for the petitioner/accused would submit that the Court below, while rightly setting aside the conviction and sentence recorded against the petitioner/accused of the offences under Sections 228, 353 and 504 of IPC, erred in recording conviction and sentence against him of the offence under Section 506 of IPC. The allegation against the petitioner/accused, taken on its face value, does not satisfy the ingredients of Section 506 of IPC. To attract the offence under Section 506 of IPC, the intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. Mere allegation that the petitioner/accused abused PW.1 in filthy language and disturbed the Court work does not satisfy the ingredients of Section 506 of IPC. PW.4, a crucial witness to speak about the call allegedly made by the petitioner/accused to PW.1 through his coin box, did not support the case of prosecution. The finding of the Court below that PW.1 cannot 6 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018 have any motive to foist a false case against the petitioner/accused cannot be a ground to convict the petitioner/accused of the offence under Section 506 of IPC. The order under challenge is illegal, improper and irregular as regards the conviction and sentence recorded against the petitioner/accused of the offence under Section 506 of IPC and ultimately prayed to allow the Criminal Revision Case as prayed for.
11. On the other hand, the learned Assistant Public Prosecutor supported the judgment impugned in this Criminal Revision Case and contended that there are no circumstances to interfere with the impugned judgment. The petitioner/accused intentionally insulted PW.1 in filthy language by calling him over telephone and disturbed the Court work. The evidence placed on record clinchingly proves the guilt of the petitioner/accused beyond all reasonable doubt for the offence under Section 506 of IPC. Though the trial Court convicted the petitioner/accused of the offences under Sections 228, 353, 504 and 506 of IPC, the Court below acquitted the petitioner/accused of the offences under Sections 228, 353 and 504 of IPC. The contentions raised on behalf of the petitioner/accused are untenable and ultimately prayed to dismiss the Criminal Revision Case.
7 Justice Juvvadi Sridevi
Crl.R.C.No.273 of 2018
12. In view of the above submissions, the point that arises for determination in this Criminal Revision Case is as follows:
"Whether the impugned judgment, dated 07.12.2017, passed in Criminal Appeal No.101 of 2017 by the Principal Sessions Judge, Mahabubnagar, is legally sustainable, insofar as confirming the conviction and sentence imposed against the petitioner/accused of the offence under Section 506 of IPC?"
POINT:-
13. I have considered the above rival submissions and meticulously gone through entire material on record. This Court is aware of the settled legal position that this Court, in exercise of its Revisional jurisdiction under Sections 397 & 401 of Cr.P.C., cannot interfere with the concurrent findings of fact recorded by the Courts below, unless they are perverse or arrived at ignoring material evidence. Further, the Revisional power of this Court under Sections 397 and 401 of Cr.P.C., is not to be equated with that of an appeal. But however, when the decision of the Court below is perverse or untenable in law or grossly erroneous or glaringly unreasonable or based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, this Court can interfere with the said decision in exercise of its Revisional jurisdiction. Section 401 of Cr.P.C. enables the High Court 8 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018 to exercise all powers of appellate Court, if necessary, in aid of power of superintendence or supervision, as a part of Revisional power. Section 397 of Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court. Thus, a duty rests on the High Court under Sections 397 and 401 of Cr.P.C. to correct manifest illegality resulting in gross miscarriage of justice.
14. In the above context in regard to the scope and limitation imposed on Revisional Court, I deem it proper to evaluate the evidence on record, in order to find out as to whether the prosecution has established that the petitioner/accused is guilty of the offence under Section 506 of IPC, and if not, whether the petitioner/accused is entitled for acquittal at the hands of Revisional court.
15. In the instant case, the allegation against the petitioner/accused is that he called PW.1 over telephone and abused him in filthy language addressing him and disturbed the Court work. The trial Court convicted the petitioner/accused of the offences under Sections 228, 353, 504 and 506 of IPC. However, on appeal, the Court below, while acquitting the petitioner/accused of the offences 9 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018 under Sections 228, 353 and 504 of IPC, confirmed the conviction and sentence imposed against him of the offence under Section 506 of IPC.
16. Section 506 of IPC prescribes punishment for the offence of Criminal Intimidation. "Criminal intimidation", as defined under Section 503 of IPC, is as under:-
"503. Criminal Intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one 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 interested, is within this section."
17. A plain 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.
18. A bare perusal of Section 506 of IPC makes it clear that before an offence of criminal intimidation is made out it must be established that an accused had an intention to cause alarm to the complainant.
10 Justice Juvvadi Sridevi
Crl.R.C.No.273 of 2018
Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of Section 506 of IPC. But material has to be placed on record to show that the intention is to cause alarm to the complainant.
19. In the instant case, the allegation against the petitioner/accused is that he called PW.1 over telephone and abused him in filthy language addressing him and disturbed the Court work. The allegations in this regard are quite vague and general. The above allegation, taking on its face value does not satisfy the ingredients of Section 506 of IPC. In the entire FIR, there is no whisper of any allegation that the alleged abuse caused any alarm to the complainant and he felt actually threatened. A plain reading of the Ex.P1-complaint in the present case does not disclose anything about the aspect of alarm. Furthermore, in my opinion, the evidence of voice identification is a suspect, if not wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and suffocated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. There is a catena of judgments which emphasise the importance of precautions, which are necessary to be taken in placing any reliance on the 11 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018 evidence of voice identification. Further, identification of the voice of the petitioner/accused by PWs.2 and 3 is a weak piece of evidence. The ability of an individual to identify voice in general and the familiarity of the listener with the known voice and even a confident recognition of a familiar voice by a listener must be established beyond all reasonable doubt by cogent, positive, affirmative and assertive evidence. Voice can also be identified by means of voice identification parade. In the instant case, admittedly, no voice identification parade was conducted by the trial Court to satisfy itself that PWs.2 and 3 were able to identify the voice of the petitioner/accused. Under these circumstances, it cannot be said with certainty that the voice of the call allegedly received by the complainant should be necessarily of the petitioner/accused.
20. In view of the above discussion, this Court is of the considered opinion that the ingredients of Section 506 of IPC are not made out against the petitioner/accused. The trial Court erred in convicting the petitioner/accused of the offence under Section 506 of IPC, so also the Court below in confirming the same. The petitioner/accused is entitled for acquittal of the offence under Section 506 of IPC.
23. Viewed thus, the impugned judgment of the Court below insofar it relates to the conviction and sentence imposed against the petitioner/accused of the offence under Section 506 of IPC is 12 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018 improper and irregular, warranting interference of this Court by exercising power under Sections 397 and 401 of Cr.P.C.
21. Resultantly, the Criminal Revision Case is allowed. The conviction and sentence recorded against the petitioner/accused of the offence under Section 506 of IPC by both the Courts below is set aside. The petitioner/accused is acquitted of the offence under Section 506 of IPC. Fine amount, if any, paid by the petitioner/accused, shall be refunded to him.
Miscellaneous applications, if any, pending in this Criminal Revision Case shall stand closed.
____________________ JUVVADI SRIDEVI, J 28th day of April, 2023 Ksk