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2002 DIGILAW 1248 (RAJ)

Anup Gupta S/o Ram Babu v. State of Rajasthan

2002-07-18

A.C.GOYAL

body2002
JUDGMENT 1. - This S.B. Criminal Revision is directed against the impugned order dated 18.6.2002, passed by Special Judge (Women Atrocities & Dowry Cases) Kota, in Sessions Case No. 7/2002, whereby the accused-petitioner was charged for an offence under section. 384 read with Sections. 109 & 292 IPC. 2. The brief relevant facts are that upon a written complaint of the prosecutrix an FIR No. 74/2002 was registered under sections. 376, 384, 342 & 292 IPC. After investigation, charge-sheet came to be filed. The learned Judge, vide order dated 18.6.2002, discharged one accused-Raju Japani but ordered to frame charge under sections. 376, 384, 342 & 292 IPC against the principal accused-Mukesh and under section. 384 read with Sections. 109 and 292 IPC against the present accused-petitioner. 3. Learned counsel for the accused-petitioner contended that charge under section. 384 read with Section. 109 Indian Penal Code is not made out as no ingredient of abetment as well as extortion exists against the accused- petitioner. It was also contended that the only evidence for offence under section. 292 is that of confession of co-accused which is not admissible against the accused-petitioner. Reliance is placed upon Anant Kumar v. The State of Madhya Pradesh, 1993 Cr.L.J. 1499 , wherein for an offence under section. 395/397 IPC, it was held that the name of the accused was not in the FIR, no identification proceedings had taken place, no recovery of articles took place from his possession and no witness named him under section. 161 Criminal Penal Code and only on the confession of the co-accused, which will be conflicting with Secs. 25 & 26 of the Indian Evidence Act, can not be made a ground for framing the charges. Learned Public Prosecutor supported the impugned order. 4. According to Section 109 IPC, whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. 5. Section 383 IPC defines extortion. It provides that 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. It provides that 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. Section 384 IPC provides punishment for this offence which may extend to three years, or with fine or with both. 7. Keeping in view the provisions of Secs. 109 & 383 IPC, no ingredient of the said offence exists in this case against the accused- petitioner as there is no evidence that offence of extortion was committed in consequence of any abetment. According to the prosecution case, the principal accused-Mukesh took the prosecutrix to his room in the month of Feb. 2002 and had sex with her and took her nude photos and handed-over the photo-reel to Raju, who asked him to hand-over it for development to the accused-petitioner, who was a photographer and the accused- petitioner developed such photos and delivered the same along with negatives to Mukesh. It is the further case of the prosecution that the accused-Mukesh wanted to pressurise the prosecutrix for having sexual inter-course with her subsequently. In view of these facts, the offence of Section 384 r/w Section 109 IPC is not even prima facie made out against the accused-petitioner. 8. As far as the charge under section. 292 Indian Penal Code is concerned, on a bare perusal of the Provisions of Section 292, this offence is prima facie made out against the accused- petitioner as he developed the nude photos which were recovered from the possession of Mukesh and he re- delivered the developed photos along with negatives to accused- Mukesh and therefore, there is no ground to interfere in the finding of framing the charge u/s. 292 IPC. The judgment cited above is not applicable to the facts of the present case. 9. Consequently, this revision is partly allowed. The order of framing charge for an offence u/ss. 384 r/w Section 109 IPC against the accused-petitioner is set-aside and the remaining part of the order framing the charge u/s. 292 is maintained. 10. Learned counsel prayed that the offence under section. 292 Indian Penal Code is bailable one and, therefore, the accused-petitioner should not released on bail. This prayer is allowed. 384 r/w Section 109 IPC against the accused-petitioner is set-aside and the remaining part of the order framing the charge u/s. 292 is maintained. 10. Learned counsel prayed that the offence under section. 292 Indian Penal Code is bailable one and, therefore, the accused-petitioner should not released on bail. This prayer is allowed. The accused-petitioner shall be released on bail provided he furnishes bail bonds as ordered by the trial Judge.Revision petition partly allowed. *******