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Rajasthan High Court · body

2015 DIGILAW 874 (RAJ)

Hansraj Laxmidas Merchant v. State of Rajasthan

2015-04-17

M.N.BHANDARI

body2015
JUDGMENT : M.N. Bhandari, J. By this petition, a challenge is made to the order dated 18.11.2014, framing charge against the petitioner for offence under Section 506 IPC. A further challenge is made to the order dated 31.03.2015, whereby revision petition filed by the petitioner was dismissed. 2. Learned counsel for petitioner submits that charge has been framed in ignorance of Section 245 Cr.P.C. In the pre-charge evidence, material was not brought, which may lead to conviction, if it remains unrebutted. In absence of evidence, the court below committed grave illegality in framing charge for the offence under Section 506 IPC. 3. Referring to complaint, he submits that a telephonic call was said to have been received by the complainant-non-petitioner where he was given threatening. The complaint discloses telephone number from where threatening was given. To confirm the call, complainant dialled said number immediately. The call was found from telephone booth. The operator of the telephone booth informed about the call by some one five minutes back but who was the person is not coming out from the complaint and the evidence led by the parties. The voice is not recognised by the non-petitioner, otherwise he would not have called the number from where call was received. In absence of evidence, framing of charge is in ignorance of Section 245 Cr.RC. 4. To make an offence under Section 506 IPC, there has to be material in the form of call recording or voice identification. In absence of it, the accused cannot be convicted. If the accused cannot be convicted in absence of evidence, he needs to be discharged with the aid of Section 245 Cr.RC. 5. In the present case, even in the pre-charge evidence, the complainant could not bring material, which may lead to conviction, if it remains unrebutted. It is apart from the contradiction in the statement of two witnesses. The courts below failed to consider all those issues while passing impugned-order for framing of charge and dismissing the revision petition. This court may interfere in the impugned orders with a direction for discharge of the petitioner. 6. A reference of similar complaint before the Magistrate in Gujarat has been given. It resulted in an order under Section 203 Cr.P.C. i.e. process was not issued. It was in absence of call recording and voice identification. The revision petition was also dismissed thereupon. 6. A reference of similar complaint before the Magistrate in Gujarat has been given. It resulted in an order under Section 203 Cr.P.C. i.e. process was not issued. It was in absence of call recording and voice identification. The revision petition was also dismissed thereupon. Looking to the facts aforesaid also, impugned orders deserve to be quashed. 7. Learned counsel for non-petitioner-complainant opposed the petition. He submitted that evidence led by the petitioner is sufficient to lead to conviction, if it remains unrebutted, it is a case where the non-petitioner had received a threatening call while he was at Jaipur. The threatening was with dire consequences. The non-petitioner-complainant then lodged complaint. The statements of the petitioner and non-petitioner were recorded. The threatening was given in reference to a case lodged at Gandhi Nagar, Gujarat. The case at Gandhi Nagar, Gujarat was lodged subsequent to a case at Mumbai. The non-petitioner had received threatening in the call, thus became uneasy. He had immediately consulted his Advocate. To have confirmation of the call, he had dialled the same number. It was from the local booth where call was confirmed by a person about five minutes back. The aforesaid has been taken as suspicion of the call by the petitioner. While framing charge, only prima facie evidence is to be seen. The non-petitioner has given sufficient evidence to show receipt of the call and threatening, it is by none else but by the petitioner, thus case is not made out to discharge the petitioner by exercising powers under Section 245 Cr.P.C. The court below, thus rightly passed order framing charge under Section 506 IPC. In view of the above, none of the grounds raised by learned counsel for petitioner are made out for quashing of the orders. Accordingly, petition may be dismissed. 8. I have given my thoughtful consideration to the rival submissions made by the parties. 9. By this petition, a challenge is made to the order dated 18.11.2014. A revision petition to challenge the said order remained unsuccessful. The case of the petitioner is in reference to Section 245 Cr.P.C. According to him, it is a case where the petitioner should have been discharged as no evidence exist which may lead to conviction, if it remains unrebutted. For ready reference, Section 245 Cr.PC. A revision petition to challenge the said order remained unsuccessful. The case of the petitioner is in reference to Section 245 Cr.P.C. According to him, it is a case where the petitioner should have been discharged as no evidence exist which may lead to conviction, if it remains unrebutted. For ready reference, Section 245 Cr.PC. is quoted hereunder: "When accused shall be discharged-(l) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall I discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." 10. Section 245 Cr.P.C. provides that upon taking evidence under Section 244, the Magistrate considers, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. The judgment of Hon'ble Supreme Court in the case of Ajoy Kumar Ghose v. State of Jharkhand & Anr., reported in (2009) 14 SCC 115 is in reference to Section 245 Cr.RC. and relevant to the controversy involved herein. The relevant paras of the said judgment are quoted hereunder for ready reference : "14. However, in a warrant trial otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.RC. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in : support of the charge unlike a warrant trial on police report, where there is only one opportunity. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course under Section 245(2) Cr.PC., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless." "16. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.RC." "18. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.PC. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.RC, Under Section 201 Cr.RC., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court. Section 202 Cr.RC. Section 202 Cr.RC. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as. he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1) (a) Cr.RC., the Magistrate cannot given such direction for such an Investigation, where he finds that offence complained of is triable exclusively by the Court of Sessions. Under Section 202(1)(b) Cr.RC., no such direction can be given, where the complaint has been made by the Court. Under Section 203 Cr.RC., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry of investigation ordered under Section 202 Cr.RC., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.RC. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant case under Section 244 Cr.P.C. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that state even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.RC., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.RC., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. The situation under Sector 245(2) Cr.P.C, however, is different, as has already been pointed out earlier. The situation under Sector 245(2) Cr.P.C, however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that previous stage could be from Section 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.RC. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.RC., makes an application for discharge." 11. Section 245 Cr.RC. mandates that upon evidence under Section 244 Cr.RC. no case against the accused is made out, which can warrant his conviction, the Magistrate should discharge. It is, however, admitted that at the stage of framing charges, only prima facie evidence is to be seen. In pre-charge evidence, the complainant should bring the evidence which, if it remains unrebutted, lead to conviction. The Hon'ble Apex court in the case of Sunil Mehta & Anr. v. State of Gujarat & Anr., reported in (2013) 9 SCC 209 has taken the same view as in the case of Ajoy Kumar Ghose (supra), thus lam not repeating those judgments on the same issue. In reference to judgment aforesaid, this case is examined. There is an allegation for commission of offence under Section 506 IPC. The complaint so as the evidence discloses a telephonic call from the petitioner wherein he had given threatening to the non complainant. The complaint as well as statement of witnesses gives confirmation of call. The non-petitioner-complainant dialled the same number from where he had received the call. It was from a telephone booth. The non-petitioners call was received by the operator, who had confirmed the call by some one five minutes back. The ground urged by learned counsel for petitioner is for absence of recording of the call and identification of the voice for which reference of judgment of Punjab & Haryana High Court in the case Chetan Lamba v. State of Punjab & Anr., Criminal Misc. No. 19131/2010, decided on 10th January, 2013 has been given. Para 8 of the said judgment is quoted hereunder for ready reference: "Threat of injury advanced on telephone even if accepted would be to remote to be effective to warrant trial/investigation. No. 19131/2010, decided on 10th January, 2013 has been given. Para 8 of the said judgment is quoted hereunder for ready reference: "Threat of injury advanced on telephone even if accepted would be to remote to be effective to warrant trial/investigation. It is found in this case that the telephone number from which threats were received are not that of the petitioner. Threat through phone being so far off the scene would hardly be of any effect to attract Section 506 IPC. It means something which has happened in the absence of a person. Allowing the prosecution in such a case is nothing short of abuse of process of the Court." 12. The perusal of judgment in the case of Chetan Lamba (supra) reveals that even if threat of injury advanced on telephone and "even if accepted" would be too remote to effect warrant trial/investigation. It was a case where the call was not received from the telephone number of the accused. With due respect to the Punjab & Haryana High Court, the view taken by it cannot be accepted by this court. Even if there is threat of injury on telephone and has been accepted by the court, what else would be required to make out case under Section 506 IPC at this stage. If judgment of Punjab & Haryana High Court is accepted then in all the cases where threat is received on the telephone, the prosecution cannot be launched. I am unable to apply the judgment of the Hon'ble Punjab & Haryana High Court in the case of Chetan Lamba (supra). 13. The other judgment is of Madras High Court in the case of Dr. Subramanian Swamy v. C. Pushparaj, reported in 1998 (1) CTC 300 . Para 13 of the said judgment has been referred by learned counsel for petitioner and is quoted hereunder: "13. So far as Section 504, IPC is concerned what is punishable under this Section is something very much graver than that in the sense insult intended to provoke a breach of the peace or the I commission of the offence or whether it was likely that such provocation would cause breach of the peace. So far as Section 504, IPC is concerned what is punishable under this Section is something very much graver than that in the sense insult intended to provoke a breach of the peace or the I commission of the offence or whether it was likely that such provocation would cause breach of the peace. To constitute the essential elements of the offence under Section 504, IPC, there should have been an act or conduct amounting to intentional insult where that act is by the use of abusive words, it is necessary to know whether the using of those words amounted to intentional insult. In the absence of those words, it is not possible whether the ingredient of intentional insult is present. An insult even if gross one is not an offence in itself under Section 504, IPC. Part II of Sec. 506, IPC is attracted if the criminal intimidation includes threat to cause death or grievous hurt. Mere outburst is not sufficient to hold that it would fall within the mischief of Sec. 506, IPC- In the instant case, the averment in the complaint and the statements in the depositions, if taken together, there are no allegations in the whole complaint that the petitioner ever made any attempt or did any act in pursuance of his alleged expression. So also, the actual words used or supposed to have been used by the petitioner is/(are) not stated either in the complaint or in the depositions. Regarding criminal intimidation to whom it was intended, whether alarm was caused, it (if) so, what are the actual words employed are not stated either in the complaint or in the depositions. In the absence of these averments touching the ingredients, mere mentioning of sections and putting a person to face the trial is nothing but the abuse of the process of the Court. The learned Magistrate has rightly dismissed the complaint holding that there is no prima facie case made out as per the allegations in the complaint and the statements made in the depositions. This is a case where even if the entire material placed before the Court are taken on its face value without evaluating, adding or subtracting anything, there will be no prima facie material to constitute the offences alleged against the petitioner. This is a case where even if the entire material placed before the Court are taken on its face value without evaluating, adding or subtracting anything, there will be no prima facie material to constitute the offences alleged against the petitioner. In such an event, to continue the proceedings is nothing but the abuse of the process of the Court and hence the complaint in PRC.No.51 of 1995 on the file of the Judicial Magistrate, Tambaram is quashed and the petition is allowed." 14. It is held that offence under Section 504 IPC is punishable when it is graver than that in the sense insult intended to provoke of each of the peace or commission of offence. A reference of Part II of Section 506 IPC is given to show that threat to cause death or grievous hurt is not sufficient to bring it within the mischief of Section 506 IPC unless there is an attempt or an act in pursuant to the threat. Referring to the complaint, it was found that there was no allegation that petitioner ever made any attempt or did any act pursuance to alleged threat. Meaning thereby, wherever threat is given on telephone, it should be followed by an attempt or act to make out an offence under Section 506 IPC. For illustration, if somebody gives threat on telephone for dire consequences or to kill would not be an offence under Section 506 IPC unless there is an attempt to do it. I do not find that to make out a case for offence under Section 506 IPC, after the threat, there has to follow up action to make out an offence. In that case, we would be re-writing the provision. In view of the above, I am unable to apply the ratio propounded by the Madras High Court in the case of Dr. Subramanian Swamy (supra). 15. In the instant case, pre-charge evidence discloses fact regarding receipt of telephone call from the petitioner and threat given therein. In the light of the aforesaid evidence, the court below did not find it to be a case to discharge the petitioner by applying Section 245 Cr.P.C. In my opinion, whatever evidence has been led, if remains unrebutted, can lead to conviction 5 and would be sufficient to frame charges. 16. A reference of the case registered at Gandhi Nagar, Gujarat has been given. 16. A reference of the case registered at Gandhi Nagar, Gujarat has been given. The order therein is favourable to the petitioner but it cannot be applied ipso facto as the order in the criminal case has to be passed on its facts. The discharge under section 245 Cr.PC. can be made when evidence is not 14 brought, which may lead to conviction, if remains unrebutted. The discharge cannot be made for offence under Section 506 IPC on the ground that no material exist to identify voice and in absence of recording. According to the petitioner, to make out a case under Section 506 IPC, evidence in the shape of call recording and voice identification is a pre-condition. If the aforesaid I argument is accepted then if one receives threat on telephone having no facility of recording or it could not be recorded, a case would not be registered for offence under Section 506 IPC. If recording does not exist, obviously, identification of voice cannot exist. In the aforesaid circumstances, case under Section 506 IPC would be made out only if some one receives threat on telephone with recording and identification of voice. The view aforesaid cannot be accepted and, if accepted, it would be having far reaching consequences in regard to the threat on telephone without recording. Section 504 of IPC does not mandate recording of voice. 17. If the judgments in the case of Chetan Lamba (supra) and .Dr. : Subramanian Swamy (supra) are taken together and applied in a case where some one receives threat to kill unless ransom is paid, yet the offence under Section 506 IPC would not be made out, unless there is an attempt or an act in furtherance. It would not be an offence even in absence of recording and identification of voice, thereby, one can give threat on the telephone to kill for : ransom, yet cannot be booked or tried. The aforesaid proposition advanced by learned counsel for the petitioner would be too dangerous to accept. It is apart from contrary to the language of Sections 504 and 506 IPC. The provision aforesaid is reproduced hereasunder: "504. The aforesaid proposition advanced by learned counsel for the petitioner would be too dangerous to accept. It is apart from contrary to the language of Sections 504 and 506 IPC. The provision aforesaid is reproduced hereasunder: "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." 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." 18. The provisions aforesaid show as to what are the required ingredients to make out a case. If the facts of this case are considered, non-petitioner has brought evidence to make out a prima facie case. The evidence led by him, if remains unreoutted, may lead to conviction. The petitioner can, however, rebut the evidence by available means. In a given case, accused could bring evidence that on the date of incidence, he was not available in the city from where the call is said to have been made but then it was by bringing evidence in rebuttal. 19. It is also a fact that after the order on the application under Section 245 Cr.PC, petitioner had preferred a revision petition but was dismissed. The present petition under Section 482 Cr.PC, thus remains nothing but a second revision petition in the hands of the same person, which is not permissible. 19. It is also a fact that after the order on the application under Section 245 Cr.PC, petitioner had preferred a revision petition but was dismissed. The present petition under Section 482 Cr.PC, thus remains nothing but a second revision petition in the hands of the same person, which is not permissible. The Hon'ble Supreme Court has made exception to entertain a petition under Section 482 Cr.PC even against an order of revisional court but it can be in rare cases where abuse of process is shown. The case in hand is not of such a nature so as to call interference in the impugned orders. In view of the discussion made above, I do not find any ground to cause interference in the two orders challenged by this petition. Hence, criminal misc. petition is dismissed.