1. Manish Kumar Mishra @ Manish Mishra 2. Ashok Kumar Mishra … v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1309 of 2022 1. Manish Kumar Mishra @ Manish Mishra 2. Ashok Kumar Mishra …. … Petitioners Versus The State of Jharkhand. …. ... Opp. Party -------- CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND For the Petitioners For the State : Mr. Indrajit Sinha, Advocate. : Mr. Akhouri Awinash Kumar, Advocate : Mr. Harsh Raj, Advocate. : Mr. Shailesh Kumar Sinha, A.P.P. -------- Order No. 05/ dated 18.09.2023 This Cr. Revision is preferred against the order dated 09.09.2022 passed by the learned Chief Judicial Magistrate, Saraikella in G.R.No.175 of 2016, arising out of Adityapur P.S. Case No.40 of 2016 wherein the application for discharge under Section 239 of Cr.P.C. has been rejected. 2. Heard learned Counsel of petitioner and learned A.P.P. on behalf of State. 3.
Legal Reasoning
A reading of the above provision shows that the essential ingredients of the offence under Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent the second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, the ingredients of the offence under Section 353 IPC are not made out.” “Para 11. Section 506 IPC prescribes punishment for the offence of criminal intimidation. “Criminal intimidation” as defined in Section 503 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 8 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.” A 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.” 17. The Hon’ble Apex Court held in Mohammad Wajid & Anr. vrs. State of U.P. & Ors 2023 SCC On Line SC 951: “Para 24. Chapter XXII of Intimidation, Insult and Annoyance. Section 503 reads thus:— the IPC relates to Criminal “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 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. Illustration A, for the purpose of inducing B to resist from prosecuting a civil suit, threatens to burn B’s house. A is guilty of criminal intimidation.” “Para 25. Section 504 reads thus:— “Section 504. Intentional insult with intent to provoke breach of the peace.—Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” “Para 26. Section 506 reads thus:— 9 “Section 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 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.” imprisonment for Para 27. 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.” 18. In view of the submissions made and the material on record and also keeping in view the allegations made in the F.I.R. and the evidence collected by the I.O. no alleged offence is made out against the petitioners and the impugned order passed by the court-below needs interference. This Cr. Revision deserves to be allowed. 19. This Cr. Revision is hereby allowed. The impugned order passed by the court-below is set aside. 20. The petitioner No. 2 and 3 are discharged from the allegations of the offence alleged against them. 10 21. Let the court-below be communicated in regard to the Judgment to follow the consequences. P.K.S/A.F.R. (Subhash Chand, J.)
Arguments
At the very outset, the learned Counsel for the petitioner has submitted that during pendency of this Cr. Revision petitioner No.1-Chandra Kant Mishra has died. The photo copy of the death certificate issued by the Registrar (Birth & Death), Tardih Gramin is also produced in which date of death is shown 05.08.2023 and submitted that in view of the death of petitioner No.1, he is not pressing this Cr. Revision on behalf of petitioner No.1. Therefore, this Cr. Revision is being pressed on behalf of petitioner No.2 and 3. 2 4. It is also further submitted that there is no evidence against the petitioners in regard to using any criminal force or assault to any of the public servant who had gone to remove the encroachment. There is nothing on record that what kind of abuse were given with intent to insult so as to provoke the breach of peace or to commit any offence by the persons insulted and nothing is on record that threat were made causing alarm in regard to criminal intimidation. From the allegations made in the F.I.R. and the statement of the witness recorded under Section 161 of Cr.P.C. no alleged offence is made out and in support of his submission, relied on following case laws: i. Manik Taneja & Anr. Vrs. State of Karnataka & Anr. reported in (2015) 7 SCC 423 ii. Mohammad Wajid & Anr. Vrs. State of U.P. & Ors. reported in 2023 SCC Online SC 951 5. The learned A.P.P. opposed the contentions made by the learned Counsel for the petitioners and contended that from the allegations made in the F.I.R. and also evidence collected by the I.O. the offence alleged is made out against the petitioners. While framing charge or disposing the discharge application, the material which is sufficient to proceed against the accused for the trial is to be considered and also contended that the appreciation of the evidence is not permissible at this stage. The court-below has rightly rejected the discharge application of the petitioner. 3 6. It is the settled law that while framing the charge or disposing the discharge application, the court has to take into consideration the allegations made in the F.I.R. and also the evidence collected by the I.O. during investigation, if from the allegations made in the F.I.R. and also the evidence collected by the I.O., if there are sufficient ground to proceed for the trial of the alleged offence, the charge should be framed. But if the court is of definite opinion that from the allegations made in the F.I.R. and the evidence collected by the I.O. no ingredient of the alleged offence is made out, the court should not decline to discharge. At the time of framing the charge the appreciation of the evidence, marshalling of evidence is not permissible. 7. From the allegations made in the F.I.R., it is found that the F.I.R. of this case was lodged by the informant-Dr. Sanjay Kumar Ratnakar wherein the allegations are made that he in compliance of the order dated 11.02.2016 received from the Sub-Divisional Officer, Saraikella to remove the encroachment on the land of Government and Housing Board as well along with police force reached near Akashmani More to Vaidehi Bhawan on 16.02.2016. Prior to the removal of the encroachment, as per law the notification and publication were also made in the newspaper and announcement was also made on the mike. Vaidehi Bhawan in which S.B.I. Bank, Oriental Bank of Commerce both were running. The boundary wall of the same was encroaching the land of Government and 4 that boundary wall was to be removed. Chandra Kant Mishra, Manish Kumar Mishra and Ashok Kumar Mishra all the three along with their supporters opposed them and also deterred them from removing the encroachment. They also instigated the mob and Vishwanath Shukla who was deputed thereon was hurled abuse and criminally intimidated. However, the mob was controlled and the encroachment was removed. On this written information case crime No. 0040 of 2016 was registered for the offence under Sections 353/504/506/34 I.P.C. against three named accused Chandra Kant Mishra, Manish Kumar Mishra, Ashok Kumar Mishra and unknown persons. 8. The restatement of the informant was recorded in para 2 of the case diary in which he reiterated all the allegations which are made in the F.I.R. In para 7, 8, 9, 10, 11 and 12 the statement of Amarjeet Prasad, Chandra Shekhar Tiwari, Chaitan Munda, Virwal Sharma, Vishwanath Shukla and Sheela Hembram, who were members of the team, were removing the encroachment. All have stated that at the time of removing the encroachment, the accused persons made hindrance in the same hurled abuse and criminally intimidated. Same kind of statement has also given by Shanti Kumar in para 13 of the case diary. 9. The relevant statutory provisions in regard to Sections 503, 504, 506 of IPC are being reproduced here-in-below: 5 intimidation.- Whoever Section 503. Criminal 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. Section 504. Intentional insult with intent to provoke breach of the peace.- Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 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. 10. From the bare perusal of Section 353 IPC, it is found that while committing the offence under Section 353 of IPC, the persons accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. 11. From the allegations made in the F.I.R. and the evidence collected by the I.O. and in the statement of all the witnesses, who were examined under Section 161 of Cr.P.C., there is no 6 whisper that the accused persons had assaulted or used criminal force against the public servants deterring them in discharging their duty. Therefore, no alleged offence of Section 353 of IPC is made out since the essential ingredient using criminal force or assault is neither alleged nor came in evidence collected by the I.O. 12. So far as the offence under Section 504 is concerned for the same it is essential that there should be intentional insult with intent to provoke that person for breach of peace or to commit any offence by the person concerned. 13. Herein neither in the F.I.R. nor the evidence collected by the I.O. nothing is shown that the public servants were intentionally insulted with intent to provoke the breach of peace or to commit an offence. Therefore, the offence under Section 504 of IPC is also not made out. 14. So far as the offence under Section 506 of IPC is concerned, for the same it is essential that the threatening with the injury to any person reputation or property with intent to cause alarm to that person or to cause that person to do any act which was not legally bound to do or to omit which he was legally entitled. 15. Herein from the allegations made in the F.I.R. and the evidence collected by the I.O. there is nothing to show that on behalf of the petitioner, the alarm was raised not to demolish the boundary wall. In the F.I.R. itself it is stated that the mob 7 was made to understand and the encroachment was removed at the spot. Therefore, the ingredient of under Section 503 of IPC which is punishable under Section 506 of IPC are also not made out. 16. The Hon’ble Apex Court held in Manik Taneja & Anr. vrs. State of Karnataka & Anr. (2015) 7 SCC 423: “Para 10. So far as the issue regarding the registration of FIR under Section 353 IPC is concerned, it has to be seen whether by posting a comment on the Facebook page of the traffic police, that section could be maintainable. Before considering the materials on record, we may usefully refer to Section 353 IPC which reads as follows: the conviction under “353.Assault or criminal force to deter public servant from discharge of his duty.—Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”