Rakesh Yadav vs State Of U.P. And Another
2022 Latest Caselaw 20423 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Judgement reserved on 11.11.2022
 
Delivered on 9.12.2022 
 
Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 15874 of 2022
 

 
Applicant :- Rakesh Yadav
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Nisheeth Yadav,Anand Kumar Yadav,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Raj Kumar Sharma
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Vikrant Yadav, Advocate assisted by Anand Kumar Yadav, learned counsel for the applicant and Shri.Raj Kumar Sharma, learned counsel for the O.P. No.2. Perused the records.

2. By means of this application, applicant has prayed for quashing the impugned Charge Sheet bearing No.1 dated 13.12.2021 and cognizance order dated 4.5.2022 passed by Additional Chief Judicial Magistrate-I Bareilly, in Case No.927 of 2022 (State Vs. Rakesh Yadav) in Case Crime No.651 of 2021, under Sections 354, 384 and 506 I.P.C., Police Station-Baradari, District-Bareilly, pending in the Court of Additional Chief Judicial Maistrate-I, district-Bareilly.

3. Applicant is an accused in the aforesaid Criminal Case arising out of F.I.R. dated 1.8.2021, wherein after investigation, Charge Sheet bearing No.1 dated 13.12.2021 under Sections 354, 384 and 506 I.P.C. was filed, wherein after cognizance, he has been summoned.

4. Applicant is a teacher by profession. He and complainant a lady are resident of same mohalla.

5. As per record, wife of applicant had earlier made a complaint against husband of complainant regarding illegal constructions, where under relevant law action was taken against him as well as complainant has filed similar complaint against other persons also.

6. Learned counsel for the applicant vehemently argued that:

(a) Present criminal proceedings is abuse of process of law and are initiated only in order to harass the applicant, being counterblast to the complaint filed by wife of applicant against husband of complainant.

(b) Allegations levelled are false and are improbable also further reliance was placed on the spot map.

(c) Ingredients of offence of Extortion are not made out as no delivery of any property took place.

(d) There are material difference between contents of F.I.R. statement of complainant under Sections 161 and 164 Cr.P.C.

(e) Criminal proceedings being manifestly attended with malafide and being malaciously instituted are liable to be quashed.

7. Learned counsel for O.P.No.2 has supported the investigation, charge-sheet and order of cognizance and summon that:

(a) Inherent powers can be used sparingly and only when complaint was frivolous or no case was made out.

(b) All the submissions raised on behalf of the applicant can be considered during trial including plea of contradiction, if any.

(c) Complainant in her statement recorded under Section 164 Cr.P.C. has narrated the act that applicant has tried to outrage her modesty. He also used to do indecent act at roof of his house visible from complainant's house.

(d) That this application be dismissed.

8. Before considering the rival submission, contents of sections 354, 384 and 506 I.P.C. are mentioned hereinafter :

" 354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

384. Punishment for extortion.--Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

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 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 1[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 imprison­ment of either description for a term which may extend to seven years, or with fine, or with both."

9. Supreme Court in Ramveer Upadhyay Vs. State of U.P. & Anr, 2022 SCC OnLine SC 484, after taking note of Manka Kumar (Dr) Vs. State of U.P. (2008) 8 SCC 781, Mrs.Dhanalakshmi Vs. R.Prasanna Kumar, AIR 1990 SC 494, Sheonandan Paswan Vs. State of Bihar and Others (1987) 1 SCC 288, State of Punjab Vs. Gurdial Singh (1980) 2 SCC 471, Municipal Corporation of Delhi Vs. Ram Kishan Rastogi and Ors, (1983) 1 SCC 1 State of Haryana & Ors. Vs. Bhajan Lal & Ors, 1992 Suppl (1) SCC 335 has held in paragraph 39 that:

"39. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Atrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Complaint Case No.19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 of the Cr.P.C. 13 (2008) 1 SCC 474 ."

10. A bare perusal of contents of F.I.R., statement of complainant recorded under Sections 161 and 164 Cr.P.C. prima facie offence under Sections 354 and 506 I.P.C. are made out that applicant tried to outrage the modesty of complainant by snatching her dupatta as well as act of threatening, however, the ingredients of Extortion are not even prima-facie present that there is no statement that complainant being under fear of injury to her or to her family has delineated any property or valuable security to the applicant.

11. Supreme Court in Dhananjay @ Dhandnjay Kumar Singh Vs. State of Bihar & Ors, (2007) 14 SCC 768 has held in paragraph nos.5,6,7, 8, 9, 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 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.

7. A First Information Report as is well known, must be read in its entirety. It is not in dispute that the parties entered into transactions relating to supply of bags. The fact that some amount was due to the appellant from the First Informant, is not in dispute. The First Information Report itself disclosed that accounts were settled a year prior to the date of incident and the appellant owed a sum of about Rs.400-500 from (sic) Gautam Dubey (sic).

8. According to the said Gautam Dubey, however, a sum of Rs.1500/- only was due to him.

9. It is in the aforementioned premise the allegations that Gautam Dubey and the appellant slapped the first informant and took out Rs.1580/- from his upper pocket must be viewed.

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 overpowering the will of the owner; in commission of an offence of theft the offender's intention is always to take without that person's consent.

" 13. We, therefore, are of the opinion that having regard to the facts and circumstances of the case, no case under Section 384 of the Penal Code was made out in the first information report."

12. I have carefully perused material on record, there is no allegation that any property or money was handed over to applicant by complainant being put under threat, therefore, no offence was made out against the applicant under Section 384 Cr.P.C.

13. Other submission of learned counsel for the applicant are akin to conducting a mini trial, which is not a scope of inherent powers as held in Ramveer Upadhyay (supra) also.

14. In view of the above discussion, the present application is allowed in part that proceedings against the applicant under Section 384 I.P.C. are quashed. However, he will face trial for other offence i.e. under Section 354 and 506 I.P.C.

15. The applicant is directed to appear before the concerned court within a period of three weeks from today and thereafter bail application if filed, same shall be considered in accordance with law taking note of the judgment passed by Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation and another, (2021) 10 SCC 773.

Order Date :- 9.12.2022

SB/AK