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2022 DIGILAW 2513 (BOM)

Paresh v. State of Maharashtra

2022-12-06

M.W.CHANDWANI, SUNIL B.SHUKRE

body2022
JUDGMENT SUNIL B.SHUKRE, J. - Heard. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. The applicant, by this application is seeking quashing and setting aside of charge-sheet no. 125/2022 filed in Crime No. 350/2022 registered at Police Station Kotwali, Amravati for the offences punishable under Ss. 353, 186, 504 and 506 of the Indian Penal Code (IPC) against the present applicant. 4. The aforesaid offences were registered against the applicant on the basis of the complaint filed by non-applicant no. 2, who was at the time of filing of the First Information Report (FIR) was working as Executive Engineer at the Maharashtra Housing and Area Development Authority (MHADA), Amravati. Non-applicant no. 2 is still posted as Executive Engineer at MHADA, Amravati. In her complaint, she has alleged that when she was working in her office, in between 1:00 p.m. to 3.00 p.m. on 15/7/2022, the applicant entered her office and started shouting at her. It is alleged that the applicant was demanding withdrawal of the criminal complaint filed by her against his brother. It is further alleged that the applicant threw away some office papers and ran after the complainant while giving her obscene abuses. It is also alleged that the applicant took away certain papers of the office and while leaving the office, the applicant issued threat to the complainant on her life. On such allegations, the offences punishable under Ss. 353, 186, 504 and 506 of the IPC were registered and investigated into. Later on, the charge-sheet also came to be filed for prosecution of the applicant for these offences. 5. It is the contention of Shri A. S. Mardikar, learned Senior Advocate for the applicant that when these allegations are taken at their face value, they do not make out any prima facie case against the applicant, although, the submission is seriously disputed by learned APP for the State. Learned APP submits that this is something, which is a matter of appreciation of evidence and therefore, it is not permissible for this Court to consider the nature of these allegations and come to any conclusion about the allegations not making out any prima facie case against the applicant. Similar is the submission of learned Additional Public Prosecutor and learned counsel for non-applicant no. 2. 6. Similar is the submission of learned Additional Public Prosecutor and learned counsel for non-applicant no. 2. 6. Upon overall consideration of the allegations made in the FIR filed against the applicant, the material collected during the course of the investigation and the settled principles of law, we find that there is great force in the argument of learned Senior Advocate for the applicant and there is no merit in the submissions of learned APP for State and learned counsel for non-applicant no. 2. 7. Sec. 353 of the IPC is about assaulting another person or using criminal force to another person, who is a public servant, in the execution of his duty as such public servant. It is also about assaulting or using criminal force against a public servant with intent to prevent or deter that person from discharging his duty as such public servant. In other words, the essential ingredients of an offence punishable under Sec. 353 of the IPC are assault launched or criminal force used against a public servant engaged in execution of his duty as a public servant and assault made or criminal force used with intention to prevent or deter the public servant from discharging his duty as a public servant. 8. The assault has been defined in Sec. 351 of the IPC and the definition indicates that whenever there is a gesture or any preparation made by one person with an intention to cause another person to apprehend that person making the gesture or preparation is about to use criminal force to another person. The definition also includes knowledge part and if any gesture or preparation is made with knowledge that it is likely to cause apprehension to another person that the person making the gesture or preparation is about to use criminal force against him, it would be an assault. The expression "criminal force" is defined in Sec. 350 of the IPC and it shows that any use of force by one person to another person without another person's consent with an intention to commit any offence or to cause another person injury, fear or annoyance is criminal force. The definition also includes knowledge aspect of the person using force to another person, without consent of that person, to the effect that by use of such force, he knows that he is likely to cause injury, fear or annoyance to the other person. The definition also includes knowledge aspect of the person using force to another person, without consent of that person, to the effect that by use of such force, he knows that he is likely to cause injury, fear or annoyance to the other person. This is also the view taken by the Coordinate Bench of this Court in the case of Ashish S/o. Yuvraj Shinde Vs. The State of Maharashtra (Criminal Writ Petition No. 1288/2017, decided on 22/1/2021). 9. Here in this case, from the allegations made by the nonapplicant no. 2 against the applicant, taken at their face value, what we find is absence of use of criminal force by the applicant against nonapplicant no. 2. For an offence punishable under Sec. 353 of the IPC to constitute, there has to be present ingredients of assault or criminal force and assault cannot be there if there is not presence of any criminal force and criminal force cannot be there if there is not present any element of force as defined in Sec. 349 of the IPC. As per Sec. 349 of the IPC, a person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: provided the aforesaid motion, or change of motion or cessation of motion is caused in one of the three ways i.e. Firstly, by his own bodily power; Secondly, by disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person; Thirdly, by inducing any animal to move, to change its motion, or to cease to move. Here, in this case, there is no indication, whatsoever, from the contents of the FIR, that any motion as contemplated under Sec. 349 of the IPC was caused by the applicant to non-applicant no. 1. Example of such motion can be like intentionally pushing of non-applicant no. Here, in this case, there is no indication, whatsoever, from the contents of the FIR, that any motion as contemplated under Sec. 349 of the IPC was caused by the applicant to non-applicant no. 1. Example of such motion can be like intentionally pushing of non-applicant no. 2 by the applicant, intentionally throwing of stone with a view to see that it comes into contact with non-applicant no.2, intentionally pulling up non-applicant no. 2 or her clothes by the applicant, inciting some dog or animal to spring upon non-applicant no. 2 and so on. Such is the nature of force which adds criminality to acts alleged against the accused like the applicant and such kind of force not having been alleged to be used by the applicant against non-applicant no. 2, we are of the view that no offence of assault or criminal force, as envisaged under Sec. 353 of the IPC is disclosed against the applicant either from the FIR filed against him or from the material available on record. There is one more essential ingredient of offence under Sec. 353 of the IPC and it is that of assaulting a public servant or using criminal force against a public servant while he is engaged in the execution of his duty as a public servant or with an intention to prevent or deter him from discharging his public duty. Even this ingredient, in our considered view, is absent in the present case. 10. As regards the offence punishable under Ss. 504 and 506 of the IPC, we find that none of these offences are constituted either in the present case. Sec. 504 of the IPC is an offence of intentional insult to provoke breach of peace and its essential ingredient is of insult made with a view to provoke that person to break the public peace and commit any other offence. The alleged offence under Sec. 504, in this case, has been committed within the office and not in such a public place where the public peace is always fragile or is on tenterhooks, thereby showing that heaping of slightest insult on another person in such a place itself would be sufficient to disturb the public peace. There is also no allegation that the alleged acts of insult were committed by the applicant with a view that nonapplicant no. 2 may commit some offence. There is also no allegation that the alleged acts of insult were committed by the applicant with a view that nonapplicant no. 2 may commit some offence. Therefore, we feel that Sec. 504 of the IPC offence is not made out in any manner in this case. Same is true about the offence of criminal intimidation punishable under Sec. 506 of the IPC, which is registered against the applicant. In order that offence of criminal intimidation is committed, threat to injury of physical body or reputation or property of person given by the accused must be accompanied by an intention to cause alarm to that person or to cause to 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. Insofar as the aspect of giving of threat with an intention to cause non-applicant no. 2 to do some act, which she is not legally bound to do or omit to do an act which she is legally entitled to do is concerned, there are no allegations made by nonapplicant no. 2 on these lines. Her allegation is that the applicant issued a threat on her life. But, the question is whether the threat was issued, presuming it was issued, with any intention to cause alarm to non-applicant no. 2. In other words, in order to prima facie make out an offence of criminal intimidation, one has to see from the facts and circumstances of the case as to what effect the threat issued or intimidation given had on another person. If the allegations leveled against the accused person are accepted as they are, they must disclose that the threat was of such a nature that it evoked an instantaneous feeling of fear or worry in that person. The word "alarm" has not been defined in IPC but, its plain dictionary meaning shows that it is a sudden feeling of fear or worry or a warning of danger (See: Oxford Dictionary). To put it differently, the threat issued by the accused, in order that it falls within the sweep of Sec. 506 of the IPC, must be of unnerving nature or creating a perception of sudden and clear danger to the person to whom it is issued. Causing of such an alarm to non-applicant no. To put it differently, the threat issued by the accused, in order that it falls within the sweep of Sec. 506 of the IPC, must be of unnerving nature or creating a perception of sudden and clear danger to the person to whom it is issued. Causing of such an alarm to non-applicant no. 2, in the present case, is not seen from the allegations leveled by her against the applicant. Therefore, we are of the view that neither offence of intentional insult punishable under Sec. 504 nor of criminal intimidation punishable under Sec. 506 of the IPC are prima facie constituted against the applicant. 11. There is one more offence, the offence of obstructing public servant in discharge of public functions, Sec. 186 of the IPC, which is registered against the applicant in the present case. For constituting this offence, which is a non-cognizable one, it is necessary that there is obstruction of public servant in discharge of his public functions and it must be "voluntarily" done by the accused. No act can be said to have been done "voluntarily", as defined under Sec. 39 of the IPC, if there is no intention to cause a particular effect which is made an offence in the IPC. Under Sec. 186 of the IPC, obstruction of a public servant in discharge of his public functions is something which is contemplated and therefore, whenever an obstruction is done unintentionally or inadvertently, such an obstruction of public servant, in discharge of his public function, cannot be said to be done voluntarily. In the present case, if there was any obstruction, as alleged by non-applicant no. 2 against the applicant, there is no material to show that the applicant had intended thereby to cause effect of obstruction of public servant in discharge of her public functions. Even otherwise, offence punishable under Sec. 186 of the IPC is a non-cognizable offence and when the other cognizable offences are held to be not prima facie made against the applicant, no investigation into this offence would be permissible in law. 12. Apart from what is stated herein above, we find that this is a case wherein the allegations against the applicant have been made for some motive to be achieved by the complainant. It is a matter of record that the applicant, a Contractor, who was issued a work order dtd. 12. Apart from what is stated herein above, we find that this is a case wherein the allegations against the applicant have been made for some motive to be achieved by the complainant. It is a matter of record that the applicant, a Contractor, who was issued a work order dtd. 2/6/2017 for carrying out Survey, Soil Investigation, planning, designing, construction & obtaining all relevant permissions and requisite completion certificate from the concerned Authority had completed his work and had submitted the bill of payment on 3/12/2021 for 2,13,42,504/-. It is also a matter of record that this Rs.2,13,42,504.00. It is also a matter of record that this bill was appropriately processed by all the officers hierarchically ranked below non-applicant no. 2, the Executive Engineer incharge of the work allotted to the applicant. It is also a matter of record that the bill of the applicant was pending on the table of non-applicant no. 2 for her clearance since 3/12/2021. It is further a matter of record that non-applicant no. 2 is the final authority for clearance of any bill submitted by a Contractor like the applicant. It is further a matter of record that non-applicant no. 2, instead of allowing the bill or even rejecting the bill, did not do anything and simply sat over the bill. It is also a matter of record that the applicant used to contact non-applicant no. 2 intermittently for payment of the bill but, there used to be no response whatsoever coming from non-applicant no. 2. It is further a matter of record that non-applicant no. 2 also did not give any reasons for keeping the bill of the applicant pending for such a long period of time. 13. On this backdrop, if a Contractor like the applicant approaches an officer like the non-applicant no. 2. It is further a matter of record that non-applicant no. 2 also did not give any reasons for keeping the bill of the applicant pending for such a long period of time. 13. On this backdrop, if a Contractor like the applicant approaches an officer like the non-applicant no. 2, a responsible officer, and the responsible officer does not either clear the bill or reject the bill, and also does not give straight forward reasons for keeping the bill pending, it is quite likely that the Contractor would experience some irritation, some frustration and even annoyance and if the Contractor in such a state of mind, reacts or overreacts or gives way to some outbursts, may be somewhat in an inappropriate manner or somewhat in a violent manner by shouting and leveling some allegations, such reaction or over reaction or outbursts, excessive as they may be under any circumstance, cannot be construed as disclosing some deliberate attempt, some intention, on the part of the Contractor to use criminal force against the officer with a view to prevent the officer from performing her public duty. Any reaction given by such a person, in such a state of mind, cannot be seen to have been done with an intent to use any criminal force against the officer. That apart, non-applicant no. 2, in the FIR filed by her against the applicant, has not even reproduced the particular abuses hurled at her by the applicant. She has also not stated in the FIR or during the course of the investigation and till the final report was filed by the Investigating Officer, as to which particular papers were actually taken away by the applicant. The Investigating Officer has also not found the applicant to be in unauthorized possession of any of the office papers belonging to the office of non-applicant no. 2 and that is the reason why there is no seizure panchnama drawn in this regard by the Investigating Officer. Even otherwise, there being no element of mens rea present and there being no issue of breach of public peace, no offences punishable under Ss. 353, 504, 502 and Sec. 186 of the IPC are, prima facie, constituted. 14. There are subsequent events as well which sufficiently indicate something which could be called as grudge nurtured by nonapplicant no. 2 against the applicant. 353, 504, 502 and Sec. 186 of the IPC are, prima facie, constituted. 14. There are subsequent events as well which sufficiently indicate something which could be called as grudge nurtured by nonapplicant no. 2 against the applicant. A reasonable inference in this regard can be drawn from two documents produced before us during the course of the argument by learned Senior Advocate for the applicant. These documents are the communications dtd. 22/7/2022 and 22/11/2022, marked as documents "A" and "B" for the purpose of identification, sent by the superior office of non-applicant no. 2 i.e. Regional Office to her. These communications show that even the Regional Office was very much perturbed over the unreasonable and unauthorized holding back of payment of the bill dtd. 3/12/2021 submitted by the applicant by non-applicant no. 2. The document "A" shows that a reminder has been given to non-applicant no. 2 that inspite of the fact that the final bill of payment had been submitted to her by the Contractor, the non-applicant no. 2 was sitting over it without assigning any reason. This communication also gives a warning to non-applicant no. 2 that it was necessary on her part to take a decision in respect of the bill immediately, failing which, there would be a possibility of the Contractor knocking at the doors of the High Court. The second communication, which is document "B", straight away gaves directions to non-applicant no. 2 to make payment of the final bill submitted by the Contractor i.e. the applicant or otherwise, she would be facing show-cause notice for her refusal to release the payment to the Contractor i.e. the applicant. 15. The aforestated communications clearly show that the whole incident of filing of the FIR against the applicant by nonapplicant no. 2 had arisen out of some spite that non-applicant no. 2 had against the applicant/Contractor. That apart, at the cost of repetition, we would say that the allegations made by her against the applicant, taken at their face value, do not disclose any of the offences, which have been registered against the applicant and for which, the applicant is proposed to be prosecuted. This case is, in our view, squarely covered by guideline no. 4 and guideline no. 7 laid down in the celebrated case of State of Harayana Vs. This case is, in our view, squarely covered by guideline no. 4 and guideline no. 7 laid down in the celebrated case of State of Harayana Vs. Bhajan Lal [1992 Supp (1) SCC 335], which read as under:- "(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155(2) of the Code. x x x x x x x (7) Where a criminal proceeding is manifestly attended with malafide 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." 16. In the result, we find that this application deserves to be allowed and accordingly the application is allowed in terms of prayerclauses (i) and (i-a), which read as under:- "i) quash and set aside the FIR in Crime No. 350/2022, dt. 15/7/2022 Police Station, Kotwali, Amravati for the offences under Sec. 106, 353, 504 and 506 of the Indian Penal Code. (AnnexureVI). i-a) Quash and set aside chargesheet No. 125/2022, dtd. 28/9/22 filed in crime no. 350/2022 registered at Police Station, Kotwali, Amravati for offences punishable under sec. 106, 353, 504 and 506 of the Indian Penal Code (Annexure-VIII)." 17. Pending application, if any, stands disposed of accordingly.