Allahabad High Court
Ramchandra vs State Of U.P. And Another on 30 August, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 22.8.2022
Delivered on 30.8.2022.
Court No. - 82
Case :- APPLICATION U/S 482 No. - 23497 of 2021
Applicant :- Ramchandra
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- R.P.S. Chauhan
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Shri. Navneet Singh, Advocate holding brief of Shri.R.P.S. Chauhan, learned counsel for applicant and Shri. Paritosh Malviya, learned A.G.A.
2. By means of this application, applicant/accused has challenged the impugned charge-sheet dated 31.5.2021 as well as cognizance order dated 2.8.2021 along with entire criminal proceedings of Case No.1310 of 2021, (State Vs. Ramchandra) arising out of Case Crime No.0033 of 2021, under Section 384, Police StationSwar, district-Rampur, pending in the Court of Additional Chief Judicial Magistrate, First, Rampur.
3. Complainant/informant/opposite party no.2 (Assistant Development Officer) lodged an F.I.R. bearing No.0033 dated 1.2.2021 at Police Station-Swar, District-Rampur against the applicant for committing an offence under Section 384 I.P.C. that applicant (husband of Gram Pradhan) had demanded Rs.10,000/- from Wajid Ali on phone for construction of each house under Prime Minister Awas Yojana.
4. During investigation, statement of Wajid Ali was recorded by Investigating Officer that three member of his family had told him that applicant had demanded Rs.10,000/- from every member for construction of a house under the scheme, which was confirmed when Wajid Ali inquired on phone from applicant. The statements of family members of Wajid Ali namely Navi Hussain, Ahmed Haseen, Jafar as well as other namely Yanudhar were also recorded and all confirmed allegations of demand of Rs.10,000/- each for construction of a house under the scheme.
5. On the basis of above evidence, charge-sheet was filed and cognizance was taken.
6. Learned counsel for the applicant submitted that ingredients of offence under Section 384 I.P.C are not made out as there was no delivery of property, which was a most vital ingredient for constituting an offence of ''extortion'. All witnesses have alleged demand of Rs.10,000/- from the applicant, but they have not stated that they actually paid Rs.10,000/- each to the applicant, therefore, no case is made out against the applicant for committing an offence of extortion.
7. Learned counsel for applicant has placed reliance on Shatrughan Singh Sahu Vs. State of Chattisgarh Through The Secretary, Department of Law and Legislative Affairs, Mantralaya, Mahanadi Bhawan, Naya Raipur Chattisgarh, 2021 0 Supreme (Chh) 243. Relevant paragraphs 17 and 22 are referred hereinafter:
"17. Thus, what is necessary for constituting an offence of 'extortion' is that the prosecution must prove that on account of being put in fear of injury, the victim was voluntarily delivered any particular property to the man putting him into fear. If there was no delivery of property, then the most important ingredient for constituting the offence of 'extortion' would not be available. Further, if a person voluntarily delivers any property without there being any fear of injury, an offence of 'extortion' cannot be said to have been committed.
22. From bare perusal of the FIR it can be very visualized that if we take the face value of the allegation made in the complaint, then also it can be very well seen that no offence under Section 388 of IPC is made out as respondent No.5 in his complaint has nowhere stated that on the basis of extortion made by the petitioner, respondent No.5 was put in fear of an accusation by the petitioner or he committed or attempted to commit any offence punishable with death and has delivered any valuable assets to the petitioner. When prima facie provisions of Section 383 of IPC is not made out, then the offence under Section 388 of IPC cannot be made out, because unless and until the ingredient of extortion is established, then only the alleged offence, prima facie, is said to have been committed by the petitioner. Since the ingredients of Sections 383 of IPC are not made out, the ingredient of Section 388 of IPC cannot be, prima facie, established, therefore, registration of FIR, prima facie, is nothing, but an abuse of process of law."
8. Learned counsel for State has supported the charge-sheet that statements of witnesses are consistent about demand of Rs.10,000/- in lieu of construction of house under the Scheme.
9. Heard learned counsel for parties and perused the record.
10. The Supreme Court in Dhananjay Alias Dhananjay Kumar Singh Vs. State of Bihar & Anr, (2007) 14 SCC 768, has held in paragraphs, 5,6,10,11,12 and 13 that:
"5. Section 384 provides for punishment for extortion. What would be an extortion is provided under Section 383 of the Indian Penal Code in the following terms:
"383. Extortion:- Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion"."
6. A bare perusal of the aforementioned provision would demonstrate that the following ingredients would constitute the offence :
1. The accused must put any person in fear of injury to that person or any other person.
2. The putting of a person in such fear must be intentional.
3. The accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security.
4. Such inducement must be done dishonestly.
x x x x
10. No allegation was made that the money was paid by the informant having been put in fear of injury or putting him in such fear by the appellant was intentional.
11. The First Informant, admittedly, has also not delivered any property or valuable security to the appellant.
12. A distinction between theft and extortion is well known. Whereas offence of extortion is carried out by over-powering the will of the owner; in commission of an offence of theft the offender's intention is always to take without that person's consent.
13. We, therefore, are of the opinion that having regard to the facts and circumstances of the case, no case under Section 384 of the Indian Penal Code was made out in the First Information Report."
(Emphasis supplied)
11. On the basis of above discussion, it is clear from face of record that most important ingredient of Section 384 I.P.C. i.e. payment of Rs. 10,000/- each by complaint/victim does not appear, therefore, as held in Dhananjay Alias Dhananjay Kumar Singh, (Supra), no offence would made out under Section 384 I.P.C.
12. It is settled law that exercise of inherent powers under Section 482 Cr.P.C. to quash criminal proceedings could be done only in exceptional cases, to prevent abuse of the process of Court, and it would only be justified when contents of complaint, the statements of witnesses recorded in support of the same if taken at their face value make out absolutely no case or did not disclose any offence or was patently frivolous, vexations or oppressive. (See Sau. Kamal Shivaji Pokarnekar Vs. The State of Maharashtra-(2019) 14 SCC 350, Neeharika Infrastructure Private Limited Vs. State of Maharashtra & Ors, 2021 SCC OnLine SC 315 and Ramveer Upadhyay Vs. State of U.P. & Anr, 2022 SCC ONLine SC 484).
13. As discussed above, complaint as well as statement recorded during investigation at their face value do not constitute any offence against the applicant as essential ingredient of Section 384 I.P.C. are not disclosed. Therefore, prayers made in this application are liable to be allowed.
14. In view of aforesaid, the application is allowed and impugned charge-sheet dated 31.5.2021 as well as cognizance order dated 2.8.2021 along with entire criminal proceedings arising out of Case Crime No.0033 of 2021, under Section 384, Police Station-Swar, district-Rampur, pending in the Court of Additional Chief Judicial Magistrate, First, Rampur is quashed.
Order Date :- 30.8.2022
SB
