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2023 DIGILAW 274 (UTT)

Yogesh Shaily v. State of Uttarakhand

2023-04-25

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The challenge given by the present applicants in this C482 application is to the cognizance order dated 21.01.2023, as it was passed by the court of Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar in a Criminal Case No. 179 of 2023, State vs. Yogesh Shaily and Others, whereby, they have been summoned to be tried for the offences under section 384 and 506 of IPC, which was registered against them at Police Station Kashipur, District Udham Singh Nagar, by way of an FIR No. 369, dated 29.06.2022. As a consequence to the issuance of the summoning order, the present C482 application has been filed on the ground that no offence under section 384 of IPC is made out as against the present applicants, and as such, continuance of the aforesaid criminal proceedings would be nothing, but an abuse of the process. 2. In relation, thereto, the learned counsel for the applicants had argued the matter in the context of the definition of extortion as provided under section 383 of IPC, which is extracted hereunder: “383. Extortion - 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.” 3. What he intends to argue is that if the definition of extortion, which is extracted above, is taken into consideration, the basic element to constitute an offence of extortion is that there has had to be an actual delivery of the valuables or the money in order to constitute an offence of extortion. Merely the creation of the fear of an injury will itself not constitute as to be an offence under section 384 of IPC, which could be made punishable for the sentence contemplated, therein, for an extortion under section 384 of IPC. 4. In support of his contention, the learned counsel for the applicants has initially referred to a judgment rendered by the Hon’ble Apex Court as reported in Isaac Isanga Musumba and Others vs. State of Maharashtra and Others, 2014 (15) SCC 357 . Particularly, he has made a reference to the contents of paragraph 3 of the said judgment, which is extracted hereunder: “3. Particularly, he has made a reference to the contents of paragraph 3 of the said judgment, which is extracted hereunder: “3. We have read the FIR which has been annexed to the writ petition as Annexure P-7 and we find therefrom that the complainants have alleged that the accused persons have shown copies of international warrants issued against the complainants by the Ugandan Court and letters written by Uganda Ministry of Justice & Constitutional Affairs and the accused have threatened to extort 20 million dollars (equivalent to 110 crores). In the complaint, there is no mention whatsoever that pursuant to the demands made by the accused, any amount was delivered to the accused by the complainants. If that be so, we fail to see as to how an offence of extortion as defined in Section 383, IPC is made out. Section 383, IPC states that.......” 5. If the said case is taken into consideration, an attempt which has been made by the learned counsel for the applicants is that as per the observations made by the Hon’ble Apex Court, in the context of the said judgment, there is no mention that in pursuance to the demand made by the accused person, therein, any actual amount was delivered to the accused by the complainant herein, and thereof, it has been observed by the Hon’ble Apex Court that no offence under section 383 of IPC could said to be made out to attract section 384 of IPC, because it was observed by the Hon’ble Apex Court that until and unless the property or valuable is delivered to an accused person in pursuance to the threat, no offence of extortion is made out against the applicant, therein. 6. Learned counsel for the applicants has made reference to yet another judgment rendered by the High Court of Chhattisgarh in Shatrughan Singh Sahu vs. State of Chhattisgarh and Others, WPCR No. 133 of 2017 and here, the learned counsel for the applicants has referred to paragraph no. 15, of the said judgment, wherein, he has submitted that almost a similar reasoning has been given by the High Court of Chhattisgarh with regards to as to what would be the element necessary to constitute an offence of extortion as defined under section 383 of IPC to make it punishable under section 384 of the IPC. Paragraph no. 15, of the said judgment, is extracted hereunder: “15. Paragraph no. 15, of the said judgment, is extracted hereunder: “15. Learned counsel for the petitioner would submit that from perusal of the FIR it is nowhere reflected that on extortion made by the petitioner, complainant/respondent No. 5 has delivered any valuable property to the petitioner, as such, he has not committed offence under Section 384 of IPC. Even from perusal of the final report, it is clear that the documents submitted by the investigating agency regarding statements of the witnesses, none of the witnesses has stated that on extortion made by the petitioner by demanding Rs. 25,00,000/- from respondent No. 5. The respondent No. 5 has given Rs. 25,00,000/- to the petitioner, as such, there is no ingredient of offence under Section 384 of IPC is made out.” 7. What he submits is that in paragraph no. 15, of the said judgment, there has had to be an actual disbursement or handing over of the money or a valuable, under the fear of the extortion created by an accused person in order to commit an offence under section 384 of IPC, and since the said element is not present in the instant case, the applicants have been wrongly summoned to be tried for the offences under section 384 and 506 of IPC. 8. With due reverence at my command, I am in respectful disagreement with the judgment rendered by the High Court of Chhattisgarh, in the context, of the observations made in paragraph no. 15, which has been extracted above. There are two reasons for it: (i) That before the High Court of Chhattisgarh, the issue which was under consideration was that a challenge was given, therein, to the FIR against the petitioner, which was registered against him, for an offence under section 384 and 388 of IPC by preferring a writ petition. 15, which has been extracted above. There are two reasons for it: (i) That before the High Court of Chhattisgarh, the issue which was under consideration was that a challenge was given, therein, to the FIR against the petitioner, which was registered against him, for an offence under section 384 and 388 of IPC by preferring a writ petition. (ii) The parameters requiring to determine the challenge given to the summoning order or the chargesheet under section 482 CrPC, are in much contradiction to that when the challenge is given to the FIR under the writ jurisdiction under Article 226 of the Constitution of India, as the parameters of its consideration take a vital change, and the same yardstick or the parameters cannot be adopted in the exercise of 482 of CrPC jurisdiction, which is circumscribed within itself, which could be exercised by the High Court while exercising its inherent jurisdiction, when there is an abuse of the process. 9. Apart from it, the reason given in the paragraph no. 15, which has been relied on by the learned counsel for the applicants reiterating his argument, that for the purposes of constituting of an offence under section 384 of IPC, there has had to be an actual delivery of the money or the valuable property, which was not apparent in the said case, therein. The Hon’ble Apex Court has observed that it will not be constituting to be an offence under section 384 of IPC, and the FIR, was accordingly quashed. 10. The Hon’ble Apex Court has observed that it will not be constituting to be an offence under section 384 of IPC, and the FIR, was accordingly quashed. 10. This Court with all humility at its command, is altogether having a different view than what has been laid down by the aforesaid two judgments, and reason for it, behind it is (1) that on the perusal of the FIR, the present applicants are shown to have a criminal history of engaging themselves in extortion of the money, and which has been referred to in the FIR, which though may not be relevant, at this stage, and to be remarked at by this Court in considering the 482 application, but quite obviously, when the court is exercising its inherent power under section 482 of CrPC, it has had to be conscious about the conduct of the applicants and the bend of mind with regards to the recurring engagement of the applicants in commission of the offence, which has been complained of in the FIR, and the commission of the offence as narrated, therein, cannot be ruled out. 11. But so far as the ratio laid down by the Hon’ble Apex Court and by the judgment of the High Court of Chattissgarh are concerned, this Court is of the view that the definition of extortion as given, therein, the use of word “to” in between “the injury to a person or to any other person to dishonestly induce a person to deliver any person of his valuable security”. 12. The definition of extortion, as provided under section 383 of IPC has already been extracted above in relation to which the penal provision has been provided under section 384 of IPC. The argument, which has been extended by the learned Counsel for the applicants has to be looked into from yet an another prospective that, when extortion in itself, if the said provision if it is read as a whole, it cannot be splitted into two parts for its interpretation for the purposes of holding of commission of the offences of extortion, that it would be only in an event when only there is an ultimate delivery of property or the valuable security. The delivery of valuable security is, as a consequence which ultimately gives the offence its final shape, otherwise to reach to that stage of forcing a person to deliver a property or the valuable security, the first step, which is provided under section 383 of IPC, is that it is an intentional act of an individual to create a fear to a person or with a clear cut intention for extracting property or a valuable security, hence it’s the first stage or a step in addition to the final offence to commit an offence, hence they would not be read separately. 13. Hence, this Court is of the view, that in order to commit an offence of extortion, the stage of creation of fear provided under section 383 of IPC, would be rather a first stage and that would be inclusive within as to be a part of an offence under section 383 of IPC, because in the absence of there being an intentional prior fear created by the accused person, and particularly, the fear of an injury, there cannot be a subsequent following act of forcing a person to deliver a property or a valuable security. 14. This Court is of the view that when creation of a fear is a part of an act necessity to give a shape of an extortion as a complete offence on an ultimate demand for a delivery of the property or a valuable security, the fear in itself would be sufficient enough to constitute as to be part of an offence of extortion, and it cannot be said that, until and unless, an ultimate delivery of the property or a valuable is made, it is then only, the extortion would be said to have been committed, is not acceptable and not logical too. 15. 15. There is another reason for this Court, that, if a person who with an intention to create a fear of injury and he had in it's conjoint intention of forcing a person to deliver a valuable security or a property, if for some any reason the person is unable to reach up to the final stage of the commission of the offence of delivery of property or a valuable security and ends to stage of creation of intentional fear, that in itself will not lead to an inference, that a person was not engaged in the commission of the offence of extortion, as the first step of the commission of the offence of extortion, has already been ventured into with a clever intention by the accused person, and if somehow or for any undisclosed reason, accused is disrupted to reach up to its ultimate stage of delivery of the property, still then too the first step taken for commission of the offences of extortion would itself amount to be an extortion in itself. 16. The argument extended by the learned counsel for the applicants, that creation of a fear or dishonestly inducing a person under the fear to deliver a property, in itself will not be an offence. This court is not accepting this argument for the reason being that, under the IPC section 503, it independently provides for, as to what would be an act of criminal intimidation, which too, is inclusive of an act of creation of a threat to cause an injury to a person. The use of the word “threat or fear” to cause an injury to a person, as contemplated under section 503 of IPC, when the law has distinctly and independently defined the “criminal intimidation” under section 503 of IPC, that cannot be taken as to be a substitute to exclude the act of fear or inducement, as it has been referred to under section 384 of IPC, to oust a person to be engaged in the commission of an offence of extortion, as defined under section 383 of IPC, because had that been the purpose of legislature, then there was no necessity for the Legislature to have independently included an act of “fear” or “intentional inducement” of a person to commit an offence of extortion, as provided under section 383 of IPC. 17. 17. For the reasons above, the provision contained under section 383 of IPC, will have to be compositely read and cannot be splitted in its interpretation, and that would mean that a fear, which has been given under section 383 of IPC, is independent and exclusive of the fear, as contemplated under section 503 of the IPC. 18. Hence, when a provision contemplates of creation of the fear or the inducement for dishonestly delivering of the property, the use of fear therein, is an intentional act which is committed by an accused person in relation to an extraction of the valuable security under section 383 of IPC, and thus the fear as provided under section 383 of IPC, will not be read in parlance to the fear or inducement, as contemplated under section 503 of IPC, and thus on the composite reading of section 383 of IPC, it relates to the fear or the injury or dishonestly creating a fear, with an intention when it constitutes to be having a consequential impact of the delivery of the property or a valuable. Then in that eventuality, if the first stage of commission of the offence of creation of a fear or whereby dishonestly inducing a person with a clever intention to extort a property or a valuable security, the first stage of creation of a fear itself would also fall to be as a part of an act of extortion under section 383 of IPC, particularly when, it intends to deliver a property or a valuable security. 19. Hence for the aforesaid reason also, the argument as extended by the learned counsel for the applicants, that the act of extortion will only be completed when there is an actual delivery of the property of a valuable security is not acceptable by this Court, for the aforesaid reason as mentioned above. 20. This Court is of the view, that its only when any individual has a clear cut pre-intention and puts a person in the fear of an injury would in itself be an act of the extortion, because the intention to commit an offence is to create a fear, is for the purposes to dishonestly induce a person to deliver a property or the valuable security for the purposes of commission of an offence under section 384 of IPC. The word used “to”, therein between, it will have to be read conjointly to constitute an offence under section 384 of IPC, because creation of fear would be a positive intentional step taken forward by the applicants in order to force upon the person to extort money or any valuable security as contemplated, therein, in order to commit an offence, which would be punishable under section 384 of IPC. 21. Even if the illustration, which has been given, therein, under section 383 of IPC, are taken into consideration, though the same has been argued to the contrary by the learned counsel for the applicants, that a defamatory label by Z to S to give his money, that in itself will not constitute to be an offence under section 383 of IPC. He thus induces Z to give him money, the offence would only be constituted, when A has committed an offence of actual delivery of the valuable property. 22. This Court takes a different view altogether, that until and unless there is a prior creation of a fear, which part of an offence of extortion under section 383 IPC, and which is a step forward for the purposes of meeting of the objective to bring an offence under section 383 of IPC, the creation of the fear in itself, would be a step to extort money from a person, who is being put to fear to deliver a valuable property or any security as contemplated under section 383 of IPC. 23. Exclusively delivery of the money may not be an isolated ground to be argued, that until and unless the money is delivered, it is not an extortion, the extortion in its literal sense means to create a pressure or psychological pressure on an individual, to do an act under a threat of fear to deliver the valuables, as contemplated under section 383 of IPC. In the absence of there being any fear, there cannot be any extortion, as such. Fear is a condition precedent prior to extortion, hence the creation of fear itself, would be an offence under section 384 of IPC. 24. In the absence of there being any fear, there cannot be any extortion, as such. Fear is a condition precedent prior to extortion, hence the creation of fear itself, would be an offence under section 384 of IPC. 24. In that eventuality, this Court is of the view that for the purposes to bring an offence under an extortion as defined under section 383 of IPC, the pre condition, which is to be satisfied is that there has had to be a fear of injury and fear of the injury would be a continuance act of an ultimately delivery of the valuable security, and in the absence of either of the two elements to commit an offence under section 383 of IPC, there cannot be an extortion as defined under section 383 of IPC to be punishable under section 384 of IPC. 25. Hence, while not accepting the argument extended by the learned counsel for the applicants, this Court is not inclined to interfere in the C482 application. Hence, the same is accordingly dismissed.