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Friday, August 23, 2013

For Taking cognizance under sec. 504 of I.P.C.- NO VERBATIM NECESSARY = The appellant then preferred Criminal Revision Application No. 1124 of 2011 challenging the order issuing the process for offence punishable under Section 504 IPC. It was contented that the allegation that she had indulged in any action with an intention to provoke the complainant to break breach of public peace or commit any other offence, was totally unfounded. Further, it was also pointed out that no details had been furnished in that complaint to show in what manner the appellant had attempted to provoke the complainant, so as to attract Section 504 IPC .Further, it was pointed out that the complaint ought to have disclosed the actual words if, at all, used by the appellant, which would have provoked her to commit any other offence. It was also pointed out that the learned Magistrate has not properly understood the scope of Section 202 Cr.P.C. in issuing the process to the appellant. = “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.”= Section 504 IPC comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. = the actual words or language should figure in the complaint. One has to read the complaint as a whole and, by doing so, if the Magistrate comes to a conclusion, prima facie, that there has been an intentional insult so as to provoke any person to break the public peace or to commit any other offence, that is sufficient to bring the complaint within the ambit of Section 504 IPC. It is not the law that a complainant should verbatim reproduce each word or words capable of provoking the other person to commit any other offence. The background facts, circumstances, the occasion, the manner in which they are used, the person or persons to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504 IPC.

                         published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40683                               
    REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1231 OF 2013
                 [Arising out of SLP (Crl.) No. 382 of 2013]


Fiona Shrikhande                                   .. Appellant

                                   Versus

State of Maharashtra and Another                   .. Respondents


                               J U D G M E N T


K. S. Radhakrishnan, J.


      Leave granted


2.    We are, in this case, concerned with an  incident  which  happened  in
Flat No. 5, 2nd Floor, Goolestan, East Wing,  Cuffe  Parade,  Mumbai,  which
led to the filing of a complaint alleging offences under  Sections  294  and
504 IPC.

3.    The Complainant (2nd respondent herein) is the  sister-in-law  of  the
accused, being the wife of the  complainant’s  brother.     Complainant  and
her brother are the sole surviving heirs of their parents who are  no  more.
 Facts indicate that the father had the tenancy rights over the  flat  where
the incident is alleged to have taken place.

4.    Complaint Case No.  4701623/SS/11  was  filed  before  the  Additional
Chief Metropolitan Magistrate,  47th  Court  at  Esplanade  Mumbai  alleging
offences punishable under Sections 298  and  504  IPC.   Complainant  stated
that she moved into the above mentioned flat on 23.04.2011  along  with  her
husband, her servants and necessary household belongings.   Having  come  to
know of the same, her brother along with accused came to India from USA  and
occupied one out of the four bedrooms in  the  flat  and  then  indulged  in
several unlawful acts with a view to push the complainant out of  the  flat.
On 8.5.2011, the accused accompanied by her daughter (born to her  from  her
first marriage) came to the flat at  about  4.00  p.m.  and  then  left  for
filing a complaint before  the  Cuffe  Parade  Police  Station  against  the
complainant stating that she had broken the locks  of  their  rooms  in  the
flat.  After lodging the complaint, she came back to  the  flat  and  rushed
into the room where the idols are  kept  and  shouted  that  she  would  not
permit anyone to enter the Puja room.  The  complainant  has  described  the
incident as follows:

      “….As I and my husband were explaining to S.I. Pawar that she  had  no
      right whatsoever to deny or prevent our access to the  Puja  Room  the
      Accused shouted that if I was so keen on doing Puja,  she  would  move
      the Devara outside.   She ran to the Devara  and  began  to  push  it.
      Finding it a little heavy, she  then  ran  in  frenzy,  picked  up  my
      clothes and that I had left on the bed, took them to the  living  room
      and threw them on the sofa. She then came back to the Puja Room and in
      a premeditated fashion made a second attempt to push the Devara out of
      the room.  She proceeded to drag the Devara in a rough manner  thereby
      dislodging all the frames and idols of our Kula  Devatas  making  them
      fall to the floor.  The lamp that I had lit also fell  to  the  ground
      and the flame was extinguished.  She  did  this  with  the  deliberate
      intention of wounding the religious feelings  of  me  and  my  husband
      knowing fully well that it would not only wound our religious feelings
      but will cause us a lot of hurt and anguish at this sacrilege  at  her
      hands.  At this point of time, even S.I. Pawar tried  to  reason  with
      her not to indulge in  such  a  sacrilegious  act.    Even  then,  the
      Accused ignored the pleas of her own daughter and  of  S.I.  Pawar  to
      stop indulging in such sacrilege to our Gods, and  intentional  insult
      to me and my husband.  Thereafter, Marisha shouted at the Accused  and
      asked her to stop indulging in such acts.”
                                                         (emphasis supplied)

5.    On the basis of the above allegations,  the  complainant  preferred  a
complaint  on  18.5.2011,  which  was  registered  as  Complaint  Case   No.
4701623/SS/11.   Learned Additional Chief Magistrate, after perusal  of  the
complaint, found a prima facie case to take  cognizance  under  Section  504
IPC against the accused and, consequently, issued  process  to  the  accused
vide his order dated 23.8.2011.

6.    The appellant then preferred Criminal Revision  Application  No.  1124
of 2011 challenging the order issuing the  process  for  offence  punishable
under Section 504 IPC.  It was contented that the allegation  that  she  had
indulged in any action with an  intention  to  provoke  the  complainant  to
break breach of public peace  or  commit  any  other  offence,  was  totally
unfounded.   Further, it was also pointed  out  that  no  details  had  been
furnished in that complaint  to  show  in  what  manner  the  appellant  had
attempted to provoke the complainant, so as  to  attract  Section  504  IPC.
Further, it was pointed out that the complaint ought to have  disclosed  the
actual words if, at all, used by the appellant, which  would  have  provoked
her to commit any other offence.  It was also pointed out that  the  learned
Magistrate has not properly understood the scope of Section 202  Cr.P.C.  in
issuing the process to the appellant.

7.    The Revision Application was  resisted  to  by  the  complainant  and,
referring to various statements made in  the  complaint,  it  was  submitted
that  the  ingredients  of  Section  504  IPC  have  been  fully  satisfied.
Further, it was  also  pointed  out  that  it  is  not  necessary  that  the
complaint should verbatim reproduce the words spoken by  the  appellant  and
that once the complaint makes  out  a  prima  facie  case  for  issuing  the
process and the Court is satisfied of the same, the Court has got the  power
to issue the process under Section 202 Cr.P.C.

8.     Learned  Additional  Sessions  Judge,  after  examining   the   rival
contentions, found no merits in the application and dismissed the same  vide
his order dated 27.7.2012.   Aggrieved by the same,  the  accused  preferred
Criminal Writ Petition  No.  2944  of  2012  for  quashing  the  proceedings
initiated under Section 504 IPC before the  High  Court.     Learned  single
Judge of the High Court, after perusing the rival  contentions,  also  found
no merits in the said petition and dismissed the same,  against  which  this
appeal has been preferred.

9.    Shri C.U. Singh, learned senior counsel appearing for  the  appellant,
submitted that the learned Magistrate  has  committed  an  error  in  taking
cognizance of an offence under Section  504  IPC,  in  the  absence  of  any
material specifying the insulting words actually used by the accused,  which
would  have  provocated  the  complainant  to  commit  any  other   offence.
Learned senior counsel submitted that the learned Magistrate  ought  not  to
have taken the cognizance and issued the process on  a  complaint  which  is
nothing but verbatim reproduction  of  the  language  of  Section  504  IPC,
without any particulars.

10.    Mr.  Uday  U.  Lalit,  learned  senior  counsel  appearing  for   the
respondents, on the other  hand,  contended  that  the  complaint  discloses
sufficient materials leading to the offence under Section 504  IPC  and  the
learned Magistrate has correctly taken cognizance of  the  same  and  issued
the process and the Sessions Judge as well as the  High  Court  has  rightly
rejected the prayer for quashing the  proceedings  initiated  under  Section
504 IPC.  Learned senior counsel submitted that  if  the  averments  in  the
complaint prima facie make out a  case,  the  Magistrate  can  always  taken
cognizance of the same and it is not necessary  that  the  complaint  should
verbatim reproduce all the ingredients of the offence nor  is  it  necessary
that the complaint should state in so many words that the intention  of  the
accused was fraudulent.

11.   We are, in this case, concerned only with the question as to  whether,
on a reading of the complaint, a prima facie case has been made out  or  not
to issue process by the  Magistrate.     The  law  as  regards  issuance  of
process in criminal cases is well settled.   At  the  complaint  stage,  the
Magistrate is  merely  concerned  with  the  allegations  made  out  in  the
complaint and has only to prima facie satisfy whether there  are  sufficient
grounds to proceed against the accused and it is not  the  province  of  the
Magistrate to enquire into a detailed discussion on the merits  or  demerits
of the case.  The scope of enquiry under Section 202  is  extremely  limited
in the sense that the Magistrate, at this  stage,  is  expected  to  examine
prima  facie  the  truth  or  falsehood  of  the  allegations  made  in  the
complaint.  Magistrate is not expected to embark upon a detailed  discussion
of the merits or demerits of  the  case,  but  only  consider  the  inherent
probabilities apparent on the statement made in the complaint.   In  Nagawwa
v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736,  this  Court
held that once the Magistrate has exercised his  discretion  in  forming  an
opinion that there is ground for  proceeding,  it  is  not  for  the  Higher
Courts to substitute its own discretion for that of  the  Magistrate.    The
Magistrate has to decide the question purely from the point of view  of  the
complaint, without at all adverting to any  defence  that  the  accused  may
have.

12.   Having noticed the scope  of  Section  202  Cr.P.C.,  let  us  examine
whether the ingredients of Section 504  IPC  have  been  made  out  for  the
Magistrate to initiate proceedings.   Section  504  is  extracted  for  easy
reference:
            “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.”


13.   Section 504 IPC comprises of  the  following  ingredients,  viz.,  (a)
intentional insult, (b) the insult must be such as to  give  provocation  to
the person insulted, and (c) the accused  must  intend  or  know  that  such
provocation would cause another to break the public peace or to  commit  any
other offence.  The intentional insult must be of such a degree that  should
provoke a person to break the public 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.

14.   We may also indicate that it is not the law that 
the actual  words  or
language should figure in the complaint.  One has to read the  complaint  as a whole and, by doing so, if the Magistrate comes  to  a  conclusion,  prima facie, that there has been an  intentional  insult  so  as  to  provoke  any person to break the public peace or to commit any  other  offence,  that  is sufficient to bring the complaint within the ambit of Section 504  IPC.  
 It is not the law that a complainant should verbatim  reproduce  each  word  or words capable of provoking the other person to  commit  any  other  offence.
The background facts, circumstances, the occasion, the manner in which  they are used, the person or persons to whom they are addressed,  the  time,  the conduct of the person who has indulged in  such  actions  are  all  relevant factors to  be  borne  in  mind  while  examining  a  complaint  lodged  for initiating proceedings under Section 504 IPC.

15.   We have already extracted the  relevant  portions  of  the  complaint.
If they are so read in the above legal settings, in our view, a prima  facie
case has been made out for initiating proceedings for  the  offence  alleged
under Section 504 IPC.

16.   In such circumstances, we find no reason  to  take  a  different  view
from that of the High Court.   The appeal is accordingly dismissed,  without
expressing any opinion on the merits of the case.




                                       ………………………………J.
                                        (K. S. Radhakrishnan)






                                       …………………………..….J.
                                        (A. K. Sikri)
New Delhi,
August 22, 2013

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