Kamleshkumar Dharmabhai Vasava vs The State Of Gujarat
2022 Latest Caselaw 6886 Guj

      R/CR.MA/7599/2020                          ORDER DATED: 03/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 7599 of 2020

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                     KAMLESHKUMAR DHARMABHAI VASAVA
                                  Versus
                           THE STATE OF GUJARAT
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Applicant(s) No. 1
MS MAITHLI MEHTA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 03/08/2022

                              ORAL ORDER

1. By way of this application under section 482 of the Criminal Procedure Code 1973, the applicant has prayed for the following reliefs.

"A) That this Hon'ble Court may be pleased to admit this Criminal Misc. Application.

B) This Hon'ble Court may be pleased to allow this Criminal Misc. Application by quashing and setting aside the impugned FIR at Annexure-A being CR No.II-692 of 2019 registered with Dindoli police station, Surat and further proceedings arising therefrom, in the interest of justice.

C) Pending admission, hearing and till final disposal of this petition, this Hon'ble court may be pleased to grant stay as to further proceedings of CR No.II-692 of 2019 registered with Dindoli police station, Surat and further proceedings arising therefrom, in the interest of justice.

R/CR.MA/7599/2020 ORDER DATED: 03/08/2022

D) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."

2. Despite service of notice, respondent No.2 herein has chosen not to appear before this Court. Mr.Qureshi, learned advocate for the applicant states that twice notice was served upon respondent No.2. However, despite service of notice on both occasions, respondent No.2 has chosen not to appear before this Court and hence, in view of the aforesaid submission of Mr.Qureshi, the matter was taken up for hearing.

3. While issuing notice, respondents were restrained from taking any coercive steps. However, investigation was directed to go on and the applicant was directed to cooperate with the investigation and thereafter on 20.7.2020 Rule was issued and since then, the matter is awaiting for final hearing.

4. As per the impugned FIR dated 14.8.2019 being CR No.II-692 of 2019, the complainant has alleged that on 6.7.2019 his son Kalpeshkumar serving in Police Department came from Rajkot and asked about his wife Priya. However, Priya was not found at home and despite inquiry with the relatives and friends, she could not be traced out. On 9.8.2019 in the afternoon, the complainant received phone call and was threatened. As the complainant inquired as to who is on the call, he was told that "I am Kamlesh speaking" and thereafter, he started abusing the complainant and threatened to kill the son of the complainant Kalpesh.

R/CR.MA/7599/2020 ORDER DATED: 03/08/2022

5. In view of the aforesaid telephonic threat, the FIR was registered against the present applicant. Initially, the offence under sections 504 and 507 of IPC was registered and subsequently, section 506(2) was added which is the subject matter of challenge before this Court.

6. Mr.Qureshi, learned advocate for the applicant submitted that by now, it is well settled that unless there is alarm, complaint under section 506(2) cannot be considered even if the plain reading of the FIR constitutes an offence. Learned advocate relied upon the judgment of this Court in the case of Mehul Chinubhai Choksi Vs State of Gujarat, reported in 2018(1) GLR 349, more particularly, paragraphs 44 to 48 and also relied upon the order dated 27.10.2020 passed in Criminal Misc. Application No.10052 of 2020 (Hardik Jayantibhai Rathod Vs The State of Gujarat) and by relying upon the said judgments, Mr.Qureshi submitted that as there was no alarm and there was no immediate threat before or after the offence allegedly has taken place. In absence of alarm, the complaint under section 506(2) would not be sustainable and therefore, the same is required to be quashed and set aside.

7. Except the aforesaid submissions and except relying upon the aforesaid two judgments, Mr.Qureshi, learned advocate did not make any other submission.

8. Ms.Maithli Mehta, learned APP has vehemently opposed the petition. However, she could not point out any material which would indicate that offences under sections

R/CR.MA/7599/2020 ORDER DATED: 03/08/2022

504, 506(2) and 507 of IPC are made out against the applicant.

9. Heard Mr.Shakeel Qureshi, learned advocate for the applicant and Ms.Maithli Mehta, learned APP for the respondent State.

10. Considering the fact that the complaint is registered only for the offences under sections 504, 506(2) and 507 of IPC, this Court has considered the FIR which would refer that telephonic threat was given to the complainant and the complainant was abused.

11. Now, in light of the aforesaid FIR, judgments cited by Mr.Qureshi, learned advocate for the applicant were considered. In the case of Mehul Chinubhai Choksi (supra), the coordinate bench observed in paragraphs 44 to 47 as under.

"(44) The above takes me to consider whether any case for the offence punishable under Section 506 of the Indian Penal Code is made out. The allegations in this regard are quite vague and general. No F.I.R. in the State of Gujarat is complete without Section 506 of the Indian Penal Code. It appears that only for the sake of levelling allegations that the first informant has tried to invoke Section 506(2) of the Indian Penal Code. Section 506 reads as under:

"S. 506. 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;

R/CR.MA/7599/2020 ORDER DATED: 03/08/2022

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

(45.) The essential ingredients The offence of criminal intimidation has been defined under Section 503 of the Indian Penal Code and Section 506 of the Indian Penal Code provides punishment for it. Section 503 reads as under:

"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 threats, commits criminal intimidation. Explanation: A threat to injure the reputation of any deceased person in whom the persons threatened is interested, is within this section. An offence under Section 503 has following essentials:

1. Threatening a person with any injury;

(i) to his person, reputation or property; or

(ii) to the person, or reputation of any one in whom that person is interested.

2. The threat must be with intent;

(i) to cause alarm to that person; or

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(ii) to cause that person to do any act which he is not legally bound to do as the means of 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.

(46.) A bare perusal of Section 506 of the Indian Penal Code 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 an accused had an intention to cause alarm to the complainant. Mere threats given by the accused not with an intention to cause alarm to the complainant, but with a view to deterring him from interfering with the work of construction of the wall, which was undertaken by the accusedapplicant, would not constitute an offence of criminal intimidation. In the entire FIR, there is no whisper of any allegation that the threats which were administered actually caused any alarm to the first informant and he felt actually threatened.

(47.) In my view, even none of the ingredients to constitute an offence under Section 506(2) of the Indian Penal Code are spelt out."

12. Similarly, the coordinate bench in its oral order dated 27.10.2020 passed in Criminal Misc. Application No.10052 of 2020 (Hardik Jayantibhai Rathod Vs State of Gujarat) in paragraphs 8 to 11 observed as under.

"8. I have heard the learned advocates appearing for the respective parties.

9. Section 503 of the IPC defines "criminal intimidation", which reads as under.

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"Section 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 threats, 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. Illustration A. for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation."

10. Section 506 of the IPC prescribes for "Punishment for criminal intimidation", which reads as under.

"506. Punishment for criminal intimidation.-- Whoever commits, the offence of criminal intimidation shall be punished with imprison- ment 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."

11. I may with profit refer to the observations

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made by this Court in the case of Mehul Chunibhai Choksi vs State of Gujarat, reported in 2018(1) GLR 349. This Court while examining the provision of section 503 of the IPC has held thus:

"The essential ingredients The offence of criminal intimidation has been defined under Section 503 of the Indian Penal Code and section 506 of the Indian Penal Code provides punishment for it. Section 503 reads as under.

"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 threats, commits criminal intimidation. Explanation: A threat to injure the reputation of any deceased person in whom the persons threatened is interested, is within this section. An offence under Section 503 has following essentials:

1. Threatening a person with any injury;

(i) to his person, reputation or property; or

(ii) to the person, or reputation of any one in whom that person is interested.

2. The threat must be with intent;

(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 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.

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(46.) A bare perusal of Section 506 of the Indian Penal Code 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 an accused had an intention to cause alarm to the complainant. Mere threats given by the accused not with an intention to cause alarm to the complainant, but with a view to deterring him from interfering with the work of construction of the wall, which was undertaken by the accusedapplicant, would not constitute an offence of criminal intimidation. In the entire FIR, there is no whisper of any allegation that the threats which were administered actually caused any alarm to the first informant and he felt actually threatened.

As regards the offence under section 506(2) of the IPC is concerned, no offence is said to have been established against the applicants in the present case since the contents of the FIR reveal that the alleged criminal intimidation has not caused any alarm to the complainant. It is settled proposition of law that mere threats given by the accused not with an intention to cause alarm to the complainant would not constitute an offence of criminal intimidation. The complainant has not stated that the criminal intimidation caused her such a degree of alarm and he actually felt threatened that the applicants will actually cause injury to him. The delay of five days in lodging the FIR would itself be fatal for satisfying the ingredients of section 503 of the IPC, if the same is not satisfactorily explained. No explanation for delay has been tendered by the complainant. It appears that the impugned F.I.R. has been lodged with oblique motive to wreck vengeance against the applicants due to their rivalry, hence the same is required to be quashed and set aside."

R/CR.MA/7599/2020 ORDER DATED: 03/08/2022

13. In the case of Hardik Jayantibhai Rathod (supra), case of Mehul Chinubhai Choksi (supra) was considered by the coordinate bench.

14. In view of the aforesaid judgments, reading of the FIR would reveal that alleged criminal intimidation has not caused any alarm to the complainant and as by now, it is settled that mere threat given by the accused but not with an intention to cause alarm to the complainant would not constitute an offence of criminal intimidation. A bare reading of the FIR in the present case does not disclose anything about the aspect of alarm and hence, the FIR is required to be quashed and set aside.

15. In the result, the petition succeeds and the same is allowed. The impugned FIR dated 14.8.2019 at Annexure- A to this petition as well as consequential proceedings arising out of the said FIR are quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.

(NIRZAR S. DESAI,J) H.M. PATHAN