High Court
Case Details
Neutral Citation No. - 2024:AHC:118781 Court No. - 74 Case :- APPLICATION U/S 482 No. - 8504 of 2024 Applicant :- Ashok Khari And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jitendra Kumar Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J. The contents of impugned order passed under Section 204 Cr.P.C., clearly demonstrate, how Magistrate without considering material placed on record in a complaint case are passing summoning orders in a very casual manner despite it being a serious affair. In the present case, an application filed under Section 156 (3) Cr.P.C. was considered as a complaint wherein number of allegations were made against the proposed accused, however, surprisingly, that has not been corroborated by statement of complainant recorded under Section 200 Cr.P.C. and for reference the same is reproduced hereinafter :- " ममेरमे घर कका लकाक लगका रहतका हहै। महै छछु टट्टी मम जकातट्टी हह हूँ। ममेरमे पतत सट्टी आर पट्टी एफ मम हहै पकातकस्तकान बकाररर पर। महै जब भट्टी वहकाहां जकातट्टी हह हूँ ततो ममेरका तकालका टछुटका हहआ तमलतका हहै। ममेरमे दमेवर व सकास ममेरमे ससछुर जतो जबरदस्तका ममेरमे कमरमे मम लमेटका दमेतमे हहै। ममेरमे कमरमे मम घछुसकर ममेरट्टी तवतरयतो बनकातमे हहै। ममेरमे अलमकारट्टी कका लकाक ततोरकर पहैसका जमेवर सब तनककाल लमेतमे हहै। मछुझमे बतोलतमे हहै तक यहकाहूँ समे चलट्टी जका नहहीं ततो तछुझमे जकान समे मकार दमगमे तथका तमेरमे बच्चमे कतो छत समे फमे क दमगमे। मछुझमे गहांदट्टी - गहांदट्टी गकालट्टी दमेतमे हहै तथका दतोनतो दमेवर मकारनमे कतो बतोलतमे हहै व सकास ससछुर उनकका सकाथ दमेतमे हहै। तरसमेम्बर मम छछु टट्टी मम गई ततो 29 तरसमेम्बर मतो तकालका ततोरका थका। उन्हतोनमे घर मम नहहीं घछुसनमे तदयका। दमेवर नमे मछुजमे मकारका थका।" Learned Trial Court has passed impugned order, though he has meticulously taken note that number of allegations are absolutely not made out, however, without considering that even the allegation under Section 323 and 504 Cr.P.C. could not be made out has summoned applicants. It appears that order of summoning is passed only for sake of summon otherwise if Magistrate came to specific conclusion that substantial statement of complainant was found to be false, the entire complaint ought to have been rejected.
Legal Reasoning
Sri Jitendra Kumar, learned counsel for applicants was initially slow to assist the Court, but on repeated queries of law and facts of this Court, he points out that even statement of complainant taken as true on face of it still offences under Sections 323 and 504 could not be made out against all the applicants. In order to reply of a query, learned counsel for applicants borrows a Bare Act from a colleague to read the Section 504 I.P.C. that there must be intentionally insult which could be sufficient to provoke other person to breach peace, is absolutely absent in the complaint as well as in statement of complainant and witnesses. At this stage, The Court takes note of a judgment passed by Supreme Court in case of Mohammad Wajid and Another Vs. State of U.P. And Others, 2023 SCC OnLine SC 951 and relevant paragraphs are reproduced hereinafter: - “SECTIONS 503, 504 AND 506 OF THE IPC 24. Chapter XXII of the IPC relates to Criminal Intimidation, Insult and Annoyance. Section 503 reads thus:— “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.” 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.” 26. Section 506 reads thus:— “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 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.” 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. 28. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised selfcontrol or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant. 29. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:— “ To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds.” 30. A bare perusal of Section 506 of the IPC 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 the accused had an intention to cause alarm to the complainant. (Emphasis supplied) 31. In the facts and circumstances of the case and more particularly, considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable under Section 506 of the IPC may probably could be said to have been disclosed but not under Section 504 of the IPC. The allegations with respect to the offence punishable under Section 504 of the IPC can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the accused persons. What exactly was uttered in the form of abuses is not stated in the FIR. One of the essential elements, as discussed above, constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present.” The Court also take note that complainant and applicants are belonged to one family and it is now become a habit to file false cases only in order to wrecking vengeance. A practice which has been deprecated by Supreme Court in case of Mahmood Ali and others Vs. State of U.P. and others, 2023 INSC 684 and the relevant part thereof is mentioned hereinafter :- "At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into 13 many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged." In the aforesaid circumstances, impugned order does not survive, however, considering that this order is passed even without issuing notice to opposite party No.2, i.e. complainant, therefore, matter is remitted to learned Trial Court to pass fresh order, taking note of aforesaid observation and judgment and after hearing the complainant. The aforesaid exercise shall be concluded within three months from today.
Decision
Application is disposed of with aforesaid observation. Registrar (Compliance) to take steps. Order Date :- 25.7.2024 P. Pandey