Arup Chatterjee v. The State of Jharkhand

and his superior officers and told that the writ petitioner will send the informant to the jail and will also take way his service. After receiving the phone calls, the informant registered Nawadih O.P. Sanha no. 07 of 2024. There is further allegation that earlier also, the writ petitioner threatened the informant and in order to defame him, on 28.01.2024 broadcasted a video making baseless allegation against the informant in one You tube channel. It is contended by the informant that as the informant was supposed to give evidence in the court in connection with Govindpur P.S. case no. 233 of 2022, the writ petitioner in order to build pressure upon the informant, to affect his testimony before the court below, made the said phone call. It is also alleged that the writ petitioner is frightening and threatening to the informant to influence the investigation and trial of Govindpur P.S. case no. 233 of 2022. It is further alleged that the writ petitioner is having a long criminal antecedent, hence, he may cause any harm to the informant and his family members at any time. On the basis of the written report submitted by the informant, the police registered Jamua P.S. case no. 169 of 2024 involving the offences punishable under Sections 186, 189, 195A, 353, 504 of the IPC against the petitioner.

4. It is submitted by learned counsel for the petitioner that the very fact that the respondent no. 2 admittedly was the officer-in-charge of Nawadih Police Out Post, when he allegedly received phone 2 W.P. (Cr.) No. 823 of 2024 call from the petitioner but he did not register any FIR and only made Sanha entry, goes to show that the alleged acts of omission and commission done by the writ petitioner, do not constitute any cognizable offence. It is next submitted that there is no allegation against the petitioner of having ever come face to face with the respondent no. 2 and all the allegation made against the petitioner were words allegedly expressed by him over the mobile phone.

5. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Mahendra Kumar Sonker vs. State of Madhya Pradesh reported in (2024) 8 SCC 244, it is submitted by learned counsel for the petitioner that the Bench of the Hon’ble Supreme Court of India consisting of three Hon’ble Judges, considered the definition of Sections 353, 350 and 349 in para 17, 18 and 19 respectively of that judgment and held that the offence punishable under Section 353 of IPC is not made out.

6. It is next submitted that the offence punishable under Section 186 and 189 of IPC are non-cognizable offence and to take cognizance under Section 186 of IPC, the procedure under Section 195 (1) (a) (i) of CrPC, ought to be followed.

7. It is next submitted that in the absence of any allegation against the petitioner that the petitioner threatened the informant to give any false evidence, the offence under section 195A of the IPC is not made out.

8. It is next submitted that in the absence of any material to suggest that the petitioner did anything to suggest that the petitioner intended to give provocation knowing that such provocation was likely that the respondent would commit breach of peace or commit any other offence, the offence punishable under Section 504 of IPC is not made out.

9. It is next submitted that so far as the offence punishable 353 of IPC is concerned, the essential ingredients to constitute the said offence are- 3 W.P. (Cr.) No. 823 of 2024 (i) The accused assaulted or used criminal force to a public servant. (ii) Such public servant was acting in discharge of his duties, (iii) The accused assaulted with intention of preventing or deterring such public servant from discharging his duty or it was used in consequence of anything done or attempted to be done by the same public servant.

10. It is next submitted that the assault which has been defined under Section 351 of the IPC, requires making any gesture of any preparation intending or knowing it to be likely that such gesture or preparation will cause any person to apprehend that such gesture or preparation is about to use criminal force to that person.

11. It is next submitted that the gesture can only happen with the motion of the body. Now in this case, admittedly, whatever the conversation took place between the writ petitioner and the respondent no. 2- the informant of the case, was only through the audio call by mobile phone, so obviously, there was no occasion for the informant to see the petitioner while the conversation took place, hence, under such circumstances, it cannot be said that the petitioner assaulted the informant.

12. So far as the use of the criminal force by the petitioner is concerned, it is submitted by learned counsel for the petitioner that as mentioned in the proviso of Section 349 of the IPC, to constitute a criminal force, there has to be a force at the first instance and a force can be said to be applied, if a motion, change of motion or cessation of motion is caused by use of the same.

13. It is submitted that in this case, as the conversation took place over mobile phone without any change in motion caused, either by the petitioner or there being any change in motion of the informant, hence, it cannot be said that any force was used by the petitioner and in the absence of use of any force, certainly, it cannot be said that the petitioner used any criminal force, 4 W.P. (Cr.) No. 823 of 2024 therefore, in the absence of this essential ingredient that the accused assaulted or used criminal force against the petitioner, it can very well be said that even if the entire allegations made in the FIR, are treated to be true in their entirety, still the offence punishable under Section 353 of IPC is not made out.

14. It is lastly submitted that as no cognizable offence in respect of which, the FIR has been registered, is made out, hence, continuation of this FIR, vide Jamua P.S. case no. 169 of 2024 will amount to abuse to process of law. It is therefore, submitted that the prayer as made in this writ petition be allowed.

15. Learned AAG III on the other hand vehemently opposes the prayer made by the petitioner in this writ petition and submits that there is direct and specific allegation against the petitioner of threatening the informant- respondent no. 2 to send him to jail and to get his service terminated and let him know the consequences and false allegation was also made that the informant is a thief of coal and video was also broadcasted in a Youtube news channel defaming the informant – respondent no. 2 by making false and baseless allegation against him, hence, the same is sufficient to constitute the offence punishable under Section 504 of IPC but it is fairly submitted that the offence punishable under Section 504 of IPC is of course a non-cognizable offence.

16. It is further submitted that the threatening over phone can be termed as use of criminal force for deterring the informant – respondent no. 2 from discharging his duties, hence, it is submitted that since the offence punishable under Section 353 of IPC is made out, if the allegations made in the FIR are considered to be true in their entirety, hence, the prayer as prayer for in this writ petition, without any merit be dismissed.

17. Learned counsel for the respondent no. 2 submits that a force can be said to have applied by words also because uttering of words involves use of body part because without using the body part, a word cannot be uttered, hence, it is submitted that since the 5 W.P. (Cr.) No. 823 of 2024 petitioner uttered the words deterring the informant – respondent no. 2 from discharging his official duty, therefore, the offence punishable under Section 353 of IPC is made out, and the learned counsel for the respondent no. 2 also submits that this writ petition being without any merit be dismissed.

18. Having heard the submission made at the Bar and after going through the materials in the record, it is pertinent to mention here that out of the offences, in respect of which, the FIR has been registered, only for the offences punishable under Section 195A and 353 of the IPC are cognizable offences.

19. So far as the offences punishable under Sections 195A of IPC is concerned, the essential ingredients to constitute the said offences are that - (i) the accused threatens any person with injury of that person or anyone in whom that person is interested. (ii) such threatening was made with an intent to cause that person, to give false evidence.

20. The false evidence has been dealt with in Section 191 of the IPC, An evidence given by a person, is said to be false, when such person either knows or believes that whatever, he states is false, or does not believe that whatever, he is stating is true, then such evidence is called ‘False Evidence’.

21. Now coming to the facts of the case, the only allegation against the petitioner is that the petitioner was threatening the informant to pressurize him to give evidence in his favour because the informant has to give evidence against the petitioner but there is no allegation in the FIR that the petitioner ever told the informant to give any false evidence or to state something in his deposition, which the informant knows to be or believes to be false or the informant does not believe the same to be true and in the absence of the same, this Court is of the considered view that even if the entire allegation made against the petitioner are considered to be true, still the offence punishable under Section 195A of IPC is not made out. 6 W.P. (Cr.) No. 823 of 2024

22. It will be relevant to quote Section 351 of the IPC, which reads as under :-

351. Assault.—Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

23. So far as the offence punishable under Sections 353 of IPC is concerned, as already discussed above, in order to constitute the offence punishable under Section 353 of IPC , assault by accused person or use of criminal force by the accused person, to a public servant is sine qua non, as already discussed above, the essential ingredients to constitute the offence of assault is making a gesture or any preparation intending or knowing that the same will cause any person present to apprehend that, such person, who makes the gesture or preparation is about to use criminal force to the other person.

24. So in order to constitute the offence of assault, both the accused and the victim are required to be present at the same place but in this case, admittedly, the petitioner and the respondent no. 2- the informant were not present at the same place, so it cannot be said that the petitioner assaulted the informant- respondent no. 2.

25. So far as the use of the criminal force is concerned in order to constitute an offence of criminal force, there has to be a force at the first instance, as defined in Section 349 of the IPC, force can be used by any person to another if the first person causes motion, change of motion, cessation of motion to the second person or if the first person, disposes any substance, such motion or change of motion or cessation of motion, as brings that substance into contact with any part of the body of the second person or with anything which the second person is wearing or carrying or with anything, so situated that such contact affects the others’ sense of 7 W.P. (Cr.) No. 823 of 2024 feeling. The proviso to Section 349 of the IPC, restricts the causing of motion, change of motion or cessation of motion to only three ways:- firstly, by his own bodily power; only which is relevant to the facts of this case. This Court do not find force in the submissions of the learned counsel for the respondent no. 2 that bodily power means use of words because only by use of bodily power words can be spoken, as use of bodily power in itself, is not sufficient to constitute the force, as defined under Section 349 of the IPC and to constitute ‘force’ additionally, there has to be causing of motion, change of motion or cessation of motion of the person, against whom such force is there.

26. Now coming to the facts of the case, there is no material in the record to suggest of causing of motion, change of motion or cessation of motion of the informant or anyone else by the acts of the petitioner.

27. Under such circumstances, this Court is of the considered view that even if the entire allegation made in the FIR are considered to be true in their entirety, still the same does not constitute the use of criminal force by the petitioner against the informant and in the absence of the same, this Court has no hesitation in holding that even if the entire allegation made against the petitioner in the FIR are considered to be true in their entirety, still same is not sufficient to constitute the offence punishable under Section 353 of IPC.

28. This Court has not delved into the other three offences punishable under Sections 186, 189 and 504 because undisputedly, the said offences are non-cognizable offences. As because of the discussions made above, no cognizable offence is made out, even if the averments made in the FIR are considered to be true in their entirety, hence, this Court is of the considered view that continuation of the criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding in connection with Jamua P.S. case no. 169 of 2024 be quashed and set aside. 8 W.P. (Cr.) No. 823 of 2024

29. Accordingly, the entire criminal proceeding in connection with Jamua P.S. case no. 169 of 2024 is quashed and set aside.

30. This writ petition is disposed of accordingly.

31. In view of the disposal of this writ petition, the interim relief granted earlier vide order dated 23.10.2024 is vacated.

32. The Registry is directed to intimate the court concerned forthwith. High Court of Jharkhand, Ranchi Dated, the 26th March, 2025 Smita /AFR (Anil Kumar Choudhary, J.) 9 W.P. (Cr.) No. 823 of 2024