TMI Blog2019 (4) TMI 1631X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of Sections 504 and 506, we are of the view that Courts below committed error in rejecting the application of discharge filed by the appellant. In the facts of the present case, we are of the view that appellant was entitled to be discharged for the offence under Sections 504 and 506. Appeal allowed - decided in favor of appellant. - CRIMINAL APPEA L NO. 759 o f 2019 (arising out of SLP (Crl.) No.4820/2017) - - - Dated:- 26-4-2019 - ASHOK BHUSHAN And K.M. JOSEPH, JJ. JUDGMENT ASHO K BHUSHAN,J. Leave granted. 2. This appeal has been filed challenging the judgment of the Allahabad High Court dated 06.02.2017 by which judgment, the criminal revision filed by the appellant was dismissed. The criminal revision was filed by the appellant challenging the order dated 29.11.2016 passed by the Additional Chief Judicial Magistrate rejecting his discharge application moved under Section 239 read with Section 245 Cr.P.C. in a complaint case No.483 of 2013 under Section 504 and 506 of I.P.C. 3. The brief facts of the case, which need to be noted for deciding this appeal are:- 3.1 The respondent No.2 (hereinafter referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was stated:- 15) Underwriters Liability In view of the above, it stands established that (a) The insured has mis represented their claim of building. (b) The insured has mis represented their claim of Plant Machinery. (c) The insured had made false declaration to inflate the stock quantity. (d) The insured had made false declaration on the stock value declaration. This policy shall be voidable in the event of mis representation, mis description or non disclosure of any material particular. If the claim be in any respect fraudulent, or if any false declaration be made or used in support thereof if any fraudulent means or devices are used by the insured or any one acting on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the wilful act, or with the connivance of the insured, all benefits under this policy shall be forfeited. It is clear that the insured s Mis representation False declaration have breached both the above stated policy conditions. In view of above, that the subject claim is not admissible under the capt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her investigation was also conducted by another I.O., who again submitted a final report opining that no offence has been committed. Again, a protest petition was filed. The Judicial Magistrate by Order dated 21.12.2012 held that no further investigation is required and it shall be justified to try and dispose of the case as a complaint case. Complainant s statement under Section 200 Cr.P.C was recorded. Complainant also got recorded statement of PW1- Ganesh Sharma and PW2 Roop Singh @ Munna. 3.7 The Magistrate by Order dated 07.02.2014 summoned the appellant under Sections 504 and 506 I.P.C. Against the order dated 07.02.2014 an application under Section 482 Cr.P.C. was filed by the appellant in the Allahabad High Court, which application was disposed of by the High Court by order dated 30.07.2014. High Court while disposing of the application under Section 482 Cr.P.C. observed that in case, if discharge application is moved by the applicant within 30 days, it is expected that the same shall be considered and decided by a reasoned and speaking order, and till disposal of the application on merit, no coercive action shall be taken against the appellant. 3.8 An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance on various judgments of this Court, which shall be referred to while considering the submissions in detail. 7. We have considered the submissions of the learned counsel for the parties and have perused the records. 8. The question to be considered and answered in this appeal is as to whether in the present case, appellant was entitled to be discharged from the offence under Sections 504 and 506 and whether Courts below committed error in rejecting the discharge application. 9. We have noticed the facts and sequence of events, which led to filing of the application under Section 156(3) Cr.P.C. by the complainant against the appellant. We, in the present case, are not concerned on the merits of the claim of the complainant regarding insurance claim of the complainant pertaining to fire incident dated 18.12.2010. Our consideration has to confine only to the question as to whether the appellant has made out a case for discharge under Sections 504 and 506 I.P.C. 10. From the facts noticed above, it is clear that appellant s role was only of a surveyor appointed by insurance company to survey and submit report on the fire insurance claim a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Magistrate by Order dated 21.12.2012 decided to treat the case as a complaint case. The complainant as well as its witnesses appeared in the witness box and supported the incident dated 02.10.2011. 14. Before we proceed to further examine the facts of the present case, we may notice the ambit and scope of power of the Court at the time of considering the discharge application. 15. This Court in Union of India Vs. Prafulla Kumar Samal Another, (1979) 3 SCC 4 had occasion to consider Section 227 Cr.P.C., which is Special Judge s power to pass order of discharge. After noticing Section 227 in paragraph No.7, this Court held following:- 7. XXXXXXXXXX The words not sufficient ground for proceeding against the accused clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 227, it was held by the court that Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. 18. Another judgment of this Court, which is to be referred is Priyanka Srivastava and Another Vs. State of Uttar Pradesh and Others, (2015) 6 SCC 287. This Court in the above case has noticed the potentiality of misuse of Section 156(3) to harass those, who are entrusted with various statutory functions. This Court, in fact, has made observations that application under Section 156(3) Cr.P.C. has to be supported by an affidavit so that person making allegation should take responsibility of what they have said in the complaint. In paragraph No.30, following has been held:- 30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace, 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. 22. Section 504 of I.P.C. came up for consideration before this Court in Fiona Shrikhande Vs. State of Maharashtra Another, (2013) 14 SCC 44. In the said case, this Court had occasion to examine ingredients of Section 504, which need to be present before proceeding to try a case. The Court held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC. 24. In another judgment, i.e., Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423, this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal intimidation, this Court laid down following in paragraph Nos. 11 and 12:- 11. Xxxxxxxxxxxxx A reading of the definition of criminal intimidation would indicate that there must be an act of threatening to another person, of cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No.13 of the judgment of this Court in Fiona Shrikhande (supra). 27. Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal Dhirajlal on Law of Crimes, 27th Edition with regard to proof of offence states following: - The prosecution must prove: (i) That the accused threatened some person. (ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested; (iii) That he did so with intent to cause alarm to that person; or to cause tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
