The Allahabad High Court while allowing the petition said that the lower court is not only blindly relying on the police investigation, but is also acting like a post office and rejecting the discharge application of the petitioners.
A Single Bench of Justice Neeraj Tiwari passed this order while hearing an application under section 482 filed by Sanjeev Rawat @ Teetu and Another.
The application has been filed for quashing the orders dated 23.11.2022 & 22.2.2023 passed by Chief Judicial Magistrate, Hathras in Case under Sections 389, 386, 452, 504, 506 & 507 IPC, Police Station- Kotwali, District- Hathras.
The facts of the case are that earlier an FIR had been lodged against the applicants on 22.10.2020, which was registered as Case under Sections 452, 386, 504, 506 & 507 IPC.
During the course of investigation, the Investigating Officer recorded the statement of informant-opposite party no 2 under Section 161 Cr.P.C on 24.10.2020. Thereafter, I.O has submitted the charge sheet against the applicants under Sections 386, 389, 452, 504 & 506 IPC.
Before framing of charges, applicants have filed discharge application on 10.8.2022, which was rejected vide order dated 23.11.2022 by C.J.M, Hapur. After rejection of discharge application, the Court has also framed charges under Sections 386, 389, 452, 504, 506 & 507 vide order dated 22.2.2023, which is also under challenge in the application by filing amendment application. Amendment application was allowed vide order dated 12.4.2023 and same was also incorporated in the said application.
Counsel for the applicants submitted that for deciding discharge application, it is required on the part of Magistrate to see FIR, Case Diary, Statement recorded under Section 161 Cr.P.C and Charge Sheet.
She next submitted that for submitting the charge sheet under Section 386 read with Section 383 IPC, it is required to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, but in the case, neither in the FIR nor in the statement recorded under Section 161 Cr.P.C, there is such allegation about the delivery of any valuable property as defined in Section 383 IPC. Therefore, no case is made out under Section 386 IPC.
Counsel for the applicants submitted that so far as Section 389 IPC is concerned, there is no allegation of fear of accusation either in the FIR or in the statement recorded under Section 161 Cr.P.C, therefore, no case is also made out under Section 389 IPC.
She further submitted that likewise as per FIR as well as statement recorded under Section 161 Cr.P.C, there is no allegation upon the accused-applicant to enter inside the house of the victim, but his presence was only shown at the residence. Therefore, no case is made out under Section 452 IPC.
She also submitted that once there is no case made out under Section 452 IPC certainly no case would also be made out under Section 504, 506 and 507 IPC.
Per Contra, Rahul Kumar Sharma, counsel for the opposite party no 2 has vehemently opposed the submission and submitted that in case any person intentionally puts any person in fear of injury and dishonestly induces the person so put in fear to deliver to any person any property, which amounts to extortion, therefore, charge sheet has rightly been submitted under Section 386 IPC and accordingly charges were also framed therein.
The Court said that,
The issue before the Court is to decide as to whether from perusal of FIR as well as statement recorded under Section 161 Cr.P.C, any charge is made out under Sections 386, 389, 452, 504, 506 & 507 IPC or not.
First of all, the Court has to see whether the ingredients of Section 386 read with Section 383 IPC are available in the case or not upon which charge sheet has been submitted and charges have also been framed therein.
From perusal of the aforesaid sections, it is apparently clear that for extortion, delivery is necessary part and in the case, there is no allegation either in the FIR or in the statement recorded under Section 161 Cr.P.C about delivery of any property or any other things as referred in Section 383 IPC.
In the case too, there is no allegation either in the FIR or in the statement recorded under Section 161 Cr.P.C about the delivery of any property as referred in Section 383 IPC. Undisputedly no delivery has ever taken place under fear or threat, which is a necessary requirement for Section 383 read with Section 386 IPC. The very same interpretation has been made by the Apex Court in the matter of Isaac Isanga Musumba (Supra) as well as other judgments referred hereinabove. Therefore, in light of facts of the case, provisions of Section 383 read with Section 386 IPC, the Court is of the firm view that no case is made out for submission of charge sheet and framing charges under Section 386 IPC.
Now coming to submission of charge sheet under Section 389 IPC as well as framing of charges under Section 389 IPC.
“From perusal of Section 389 IPC, it is apparently clear that there must have been fear of accusation of offence to commit extortion, but from perusal of FIR as well as statement recorded under Section 161 Cr.P.C, there is no allegation like this in the case.
It is apparently clear that while deciding the discharge application, the Court has not followed the settled ratio of law laid down by the Apex Court as well as the Court.
In fact, the Court blindly relying upon the charge sheet submitted by I.O rejected the discharge application and framed charges thereafter. As discussed hereinabove, treating the allegation in FIR as well as statement recorded under Section 161 Cr.P.C is correct, no case is made out under Sections 386 & 389 IPC, but trial Court functioning like a post office accepted the charge sheet and treating the version true, rejected the discharge application. Thereafter proceeded to frame charges also in the same sections. In fact, the approach of trial Court suffers non application of judicial view settled by the Apex Court as well as different Courts. In a very casual manner vide impugned orders dated 23.11.2022 & 22.2.2023 discharge application has been rejected and charges have been framed, which cannot be sustained”, the Court further observed while allowing the Petition.
“The orders dated 23.11.2022 & 22.2.2023 passed by Chief Judicial Magistrate, Hathras so far relating to rejection of discharge application for Section 386 & 389 IPC as well as framing charges under Section 386 & 389 IPC are hereby quashed.
For remaining sections i.e, Sections 452, 504, 506 & 507 IPC, the Court found no illegality in rejecting the discharge application and framing charges”, the order reads.