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2012 DIGILAW 103 (JHR)

Bal Kishan Tewari v. State of Jharkhand

2012-01-18

R.R.PRASAD

body2012
ORDER By the Court.- This application is directed against the order dated 8.4.2010 passed by the then Sub-divisional Judicial Magistrate. Madhupur at Deoghar in Madhupur P.S case No. 248 of 2009 (G.R No. 578 of 2009) whereby and where under cognizance of the offence was taken under Sections 384/504 of the Indian Penal Code. 2. The facts giving rise to this application are that one Anita Pathak opposite party No. 2 lodged a case on 9.12.2009 at Madhupur Police Station stating therein that she is one of the members of an organization known as "Society for Advancement in Education. Dehradun", It has been alleged that on 27.11.2009 the petitioner resident of Kanpur by making a call on telephone extended threat that he will not allow her society to be run, If she intends to run the society, she will have to pay Rs. 10 lacs. 3. It has been further alleged that on 3.12.2009 he came to her residence at Madhupur and misbehaved with her and conveyed her that he will get college known as "Asia School of Engineering and Management" being run through the society closed. On 5.12.2009 the petitioner again came and misbehaved with her and then extended threat that he will not allow the college to be run. if she does not make payment of Rs. 10 lacs. The police after completion of the investigation submitted charge sheet under Sections 384/504, upon which cognizance of the offence was taken vide impugned order which is under challenge. 4. Mr. P.P.N. Rai, learned Sr. counsel appearing for the petitioner submits that taking the allegation made in the first information report to be true. no offence is made out either under Section 384 or under Section 504 of the Indian Penal Code and that allegation made appears to be quite improbable as no prudent man would believe that the petitioner. resident of district-Kanpur would come down to Madhupur and would indulge in the manner as has been alleged and that in fact, the said allegations are attended with malice and has been lodged at the instance of Arun Kumar Mishra, Chief Engineer, UPSIDC, Kanpur, who by adopting corrupt means has committed financial irregularity in UPSIDC, for which a case has been instituted and is being prosecuted by this petitioner. 5. 5. Learned counsel in order to connect link did point out that one Illina Nayak, wife of the said Arun Kumar Mishra is the Secretary of the organization known as "Society for Advancement in Education" whereas the informant is one of the members and as such, one can easily come to the conclusion that the instant prosecution has been lodged though by Anita Pathak but it is Arun Kumar Mishra, who is instrumental in getting the case lodged and hence, when the prosecution appears to be malicious one, it is fit to be quashed. 6. Learned counsel in support of his submission has relied upon a decision rendered in a case of Deo Lakhan Paswan v. State of Jharkhand & Ors., 2012(1) JWR 206 (SC). 7. As against this, Mr. B.M. Tripathy, learned senior counsel appearing for the opposite party No. 2 submits that so far plea of malicious prosecution is concerned, it be noted that Arun Kumar Mishra never happens to be the informant and the link between the informant and the said Arun Kumar Mishra appears to be too remote and moreover, the police after investigating the case found the allegation prima facie true and under this circumstances, at this stage, it can never be taken that the instant prosecution is malicious one. 8. Learned counsel further submits that the allegation made in the first information report does constitute offence of extortion and as such, under the settled principle of law, the Court would not like to interfere with the order taking cognizance, rather the pleas which have been taken by the petitioner need to be thrashed out during trial and hence, this application is fit to be dismissed. 9. Having heard learned counsel appearing for the parties, it be stated that the Hon'ble Supreme Court in one of the most celebrated cases State of Haryana & Ors. v. Bhajan La! & Ors., 1992 Supp. (1) SCC 335 have laid down guideline under which criminal proceeding warrants to be quashed. Those grounds have been categorized. Category No.7 speaks about the malicious prosecution which reads as follows: "Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge". 10. Those grounds have been categorized. Category No.7 speaks about the malicious prosecution which reads as follows: "Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge". 10. In the instant case, nothing has been placed so as to an opinion can be formed that the informant had private or personal grudge against the petitioner, At the same time it is stated that the instant case has been lodged at the instance of Arun Kumar Mishra but the Informant does not have any direct connection/link with the said Arun Kumar Mishra, though it may be remote one but at this stage, it would not be proper and appropriate to go into this matter. 11. So far the case referred to on behalf of the petitioner is concerned, it was quashed when the Court found that the prosecution was result of malicious counter action for proposed action to be taken by the appellant. Thus the aforesaid case is not at all applicable in this case. 12. Other submissions which had been advanced on behalf of the petitioner that since there has been no delivery of property offence of extortion is not made out and that the petitioner has only been alleged to have misbehaved with the informant which can never be take) that the petitioner put the informant in fear, At this stage. I need not to go into the merit of the case as to whether offence has been committed or not, rather it is to be seen prima facie as to whether allegation made in the compliant does constitutes offence of extortion. 13. Extortion has been defined in Section 383 of the Indian Penal Code which reads as under: 383. Extortion.-Whoever intentionally puts any person in fear of any in jury 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". 14. Further Section 385 of the Indian Penal Code reads as follows: 385. Commits, "extortion". 14. Further Section 385 of the Indian Penal Code reads as follows: 385. Putting person in fear of injury in order to commit extortion.-Whoever in order to the committing of extortion, puts any person in fear or attempts to put any person in fear of any injury shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. 15. On perusal of the aforesaid provision one comes to conclusion that even if one in order to commit offence of extortion puts any person to fear offence of extortion gets attracted. 16. Thus the allegation made in the first information report prima facie constitutes offence of extortion. Hence I do not find any merit in this application Accordingly, this application is dismissed. 17. Before parting with this order it be recorded that any finding, given for the purpose of disposal of this case which may not be prejudicial to the case of the parties. Application dismissed.