LAW FOR ALL : Charge sheet filed for offenses of extortion U/s 384 IPC, without fulfilling the ingredients of Section 383 IPC, is quashed with cost of Rs.2 lacs.....

Monday, January 8, 2024

Charge sheet filed for offenses of extortion U/s 384 IPC, without fulfilling the ingredients of Section 383 IPC, is quashed with cost of Rs.2 lacs.....

Neutral Citation No. - 2023:AHC-LKO:82336

Court No. - 12

Case :- APPLICATION U/S 482 No. - 11678 of 2023

Applicant :- Ram Gopal Gupta

Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt.

Lko. And 3 Others

Counsel for Applicant :- Riyaz Ahmad,Divesh Sinha,Sunil

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Singh,J.

1. Counter affidavit filed by learned A.G.A. for the State is

taken on record.

2. Learned counsel for the applicant does not want to file any

rejoinder affidavit.

3. Heard learned counsel for the applicant as well as learned

A.G.A. for the State and perused the record.

4. The present application has been filed for quashing the

impugned charge-sheet dated 13.10.2020 arising out of the

F.I.R. No. 432 of 2020 dated 27.09.2020 U/s 384 I.P.C., Police

Station- Lonar, District- Hardoi as well as the impugned

summoning order dated 25.04.2022 and the impugned order

dated 02.08.2023 passed in criminal Case No. 6561/2022

including entire proceedings thereof.

5. On 30.11.2023 following order was passed:-

"1. Heard learned counsel for the applicant and learned A.G.A. for the

State.

2. The present application under Section 482 Cr.P.C. is filed with the

prayer to quash the proceedings of Criminal Case No.6561/2022, arising

out of Case Crime No.432/2020, under Section 384 I.P.C., Police Station

Lonar, District Hardoi.

3. Learned counsel for the applicant has submitted that case in question

was initiated on the basis of one aired video but the said video was not

made part of the investigation. He also submitted that charge sheet under

Section 384 I.P.C. was filed by the Investigating Officer in the most

mechanical manner and no offence is made out under Section 384 I.P.C.

He next submitted that for proving the said offence it is mandatory that

there must be a victim, therefore, indulgence of this Court is necessary.

4. Learned A.G.A. admitted this fact that video was not made part of the

case diary and he also does not dispute this fact that there is no victim in

the entire case diary.

5. Considering the submissions of learned counsel for the parties, going

through the record of the application as well as other relevant documents,

as F.I.R. in question was lodged by the Sub Inspector, Rishi Kumar, P.S.

Lonar, Hardoi on the basis of some video but neither the same was made

part of the case diary nor sent to the F.S.L. for examination, therefore,

matter requires consideration.

6. List this case on 8.12.2023.

7. On the next date, Circle Officer, Police Station Lonar, District Hardoi

shall appear before this Court and explain how offence under Section 384

I.P.C. is made out and also file affidavit in this regard, failing which, cost

shall be imposed.

8. Till the next date of listing, impugned proceeding shall remain stayed."

6. In pursuance of aforesaid order, Circle Officer- Mr. Vinod

Kumar Dubey, Circle Officer, Harpalpur, Hardoi is present

today before this Court. He states that during the course of

investigation, victim was not traceable, as a result, the statement

of informant/sub inspector who prepared the recovery memo

was recorded and charge-sheet was submitted by Investigating

Officer on the basis of recovery as well as confessional

statement of applicant.

7. Learned counsel for the applicant submits that applicant has

been falsely implicated in the present case on the basis of

presumption that he was extorting the money from truck

drivers. He further submits that the F.I.R. of the case in question

was lodged by Sub Inspector- Rishi Kapoor, Police StationLonar, District- Hardoi with the averment that on 27.09.2020,

when he was patrolling along with Constable- Ram Singh in the

area of Police Outpost Bawan, he received a video, in which, he

found that at No Entry Point, one police personnel was

extorting the money from truck drivers and was keeping it in

his pocket. On taking cognizance of the said video, Sub

Inspector- Rishi Kapoor went at No Entry Point and the alleged

video was shown to the person who was deployed at No Entry

Point then the said person admitted that the photo in the alleged

video was of him but it was old video. In this regard, the name

of deployed police personnel was asked and search was also

conducted; then it was found that he was Ram Gopal Gupta, s/o

late Beche Lal r/o Husainpur Sahora, Post- Sakatpur, Police

Station- Lonar, District- Hardoi, who was deployed as home

guard at the No Entry Point. After search, total thirty rupees

(three notes of ten rupees) were found from his pocket and after

interrogation, he admitted that he was taking the money from

people those were passing from the No Entry Point; he also

stated that all the extorted money has already been spent, and he

also told that Rs. 30/- which were recovered from him was

brought from his house. Thereafter, statement of Constable-

Ram Singh and Sub Inspector- Rishi Kapoor was recorded U/s

161 Cr.P.C. and charge-sheet was submitted by Investigating

Officer.

8. Further submission of learned counsel for the applicant is

that as per the provisions of Section 384 I.P.C., it is necessary

that for the purpose of extortion, aggrieved person is a

necessary ingredient but in the present case, no one is aggrieved

as merely on the basis of presumption, applicant was implicated

and charge-sheet was submitted by Investigating Officer U/s

384 I.P.C. It is further submitted that the discharge application

was moved by applicant before learned trial court on

02.08.2022 which was rejected without considering the

ingredients of provisions of Section 383 I.P.C. Relying on the

decision of Hon'ble Apex Court in the case of State of Haryana

and others Vs. Bhajan Lal and others reported in 1992 SCC

(Cri.) 426, it is, thus, submitted that summoning order dated

25.04.2022 as well as the impugned order dated 02.08.2023 and

charge-sheet dated 13.10.2020 may be quashed.

9. Learned A.G.A. opposes the prayer of applicant and submits

that after investigation, charge-sheet was submitted by

Investigating Officer and all the defense of applicant can be

considered at the appropriate stage during the trial. He also

concedes the fact that Rs. 30/- were recovered from applicant

and he was taken into custody on the basis of presumption. He

further submits that during the course of the

investigation, applicant had himself admitted that he extorted

the money at the No Entry Point. He also submits that there is

no illegality in the aforesaid charge-sheet which was bet by

Prosecuting Officer and approved by Circle Officer of the area

in question. Learned A.G.A. lastly submits that there is no

illegality in the summoning order and the order by which the

discharge application of applicant was rejected. However, he

does not dispute the fact that no aggrieved person was found

during the course of investigation.

10. Considering the submissions of learned counsel for the

applicant, learned A.G.A. and going through the contents of

application, F.I.R., impugned order as well as other relevant

enclosures; it is evident that as per the prosecution case, on

27.09.2020, informant- Sub Inspector- Rishi Kapoor received a

video on his phone, in which, it was shown that at No Entry

Point, one person in police dress was taking money from the

truck drivers after putting them under fear and was keeping the

money inside his pocket. Sub Inspector- Rishi Kapoor,

immediately, went to the No Entry Point and found that he was

the same person, as shown in video, who was extorting the

money. The alleged video was shown to the said police

personnel who accepted that the shown photo in the video was

of him. Thereafter, search was conducted and total Rs. 30/-

were found from his pocket for which he explained that this

amount was brought from his house when he was coming to his

duty. It is also evident that neither any extorted amount nor any

aggrieved person was found, at the time of search or during the

course of investigation. Moreover, admittedly no statement of

any aggrieved person was recorded.

11. The arrest/recovery memo which was prepared is as under:-

"नकल फरर गगिरफ्तताररी एक नफर अगभियक्त अन्तगि य रत धतारता-384 आई०परी०सरी० थतानता-

ललोनतार, जनपर-हररलोई आज गरनतानांक-27.09.2020 कलो मम उ 0 गन० ऋगषि कपपूर मय

हमरताहरी कता० रताम ससनांह कके चचौककी ककेत्र बतावन मम मतामपूर थता। जब म जगिररीशपयर चचौरताहता थता म

तलो फलोन पर एक वरीगडियलो वतायरल हहआ गक नलो इन्टटरी प्वताइन्ट पर वरर्दी गरखतायरी रके रहता हह

जलो टटकलो कलो चतालकलो कलो डिरता धमकताकर पहसके वसपूल कर रहता हह और अपनरी जकेब मम रख

रहता हह। उक्त वरीगडियलो कता सनांजतान लकेकर नलो इन्टटरी प्वताईन्ट पर पहहनांचता तलो वह व्यगक्त नलो

इन्टटरी प्वताईन्ट पर डपूटरी कर रहता हह। उस व्यगक्त कलो वरीगडियलो गरखताकर पहचतान करतायरी

गियरी तलो उस व्यगक्त नके कहता गक यह मकेररी फलोटलो ह। वरीगडियलो पयरतानता हह। नताम पतता पपूछतके ह म हए

जतामता तलताशरी ककी गियरी तलो उसनके अपनता नताम रताम गिलोपताल गियपता पयत्र स्व० बकेचके लताल

गनवतासरी-हहसहन सहलोरता, थतानता-ललोनतार, हररलोई उम्र कररीब 55 बततायता गक म हलोम गिताडि म र मम

तहनतात हहहूँ। मकेरता नम्बर-0450 हह। वतरमतान मम नलो इन्टटरी प्वताईन्ट पर डपूटरी कर रहता हहहूँ।

जतामता तलताशरी सके रतागहनके पकेन्ट ककी जकेब मम (10X3=30) तरीस रू० बरतामर हहए। उक्त

व्यगक्त पहसता वसपूलके ककी सम्बन्ध मम कडताई सके पपूछता तलो बततायता गक म नलो इन्ट म टरी प्वताईन्ट पर

आनके जतानके वतालके ललोगिगों सके डिरता धमकताकर पहसता लके रहता थता। उस गरन जलो पहसता महनके ललोगिलो

सके सलयता थता वह खचर हलो गियके ह। यह तरीस रू० म म म अपनके घर सके गकरतायके कके सलयके लकेकर

आयता थता। इनकता यह अपरताध एक रण्डिनरीय अपरताध हह। धतारता -384 आई०परी०सरी०

अवगित करतातके हहए समय 16.25 बजके पयसलस गहरतासत मम सलयता। रचौरतानके गगिरफ्तताररी मता०

सवर्वोच्च न्यतायतालय व मतानवतासधकतार आयलोगि कके आरकेशलो व गनररशगों कता पपूररततः पतालन

गकयता गियता। वरर्दी कता उतरवताकर सतारता कपडके पहनतायके गियके। फरर मचौकके पर सलखकर

पढ़कर सयनताकर सम्बनन्धत कके अलतामतात बनवतायके जता रह ह। रचौरतानके कताय म रवताहरी जनतता कके

कताफकी ललोगि आ गियके थके सजनसके गिवताहरी कके सलयके कहता गियता तलो बयरताई भिलताई कता वतास्तता

रकेकर कलोई भिरी व्यगक्त गिवताहरी रकेनके कलो तहयतार नहहीं हहआ। गगिरफ्तताररी ककी सपूचनता थतानता

आकर अगभियक्त कके पररजनगों अकब सके ररी जतायकेगिरी। फर य र ककी कताबरन कतापरी अगभियक्त कलो य

मचौकके पर ररी गियरी। ह० गहन्ररी रताम गिलोपताल, ह० गहन्ररी कता० रताम ससनांह गरनतानांक-27.09.20

थतानता ललोनतार, हररलोई, ह० अनांगकेजरी अपठनरीय एस०आई० 27.09.2020 (ऋगषि कपपूर

उ 0 गन0) थतानता ललोनतार, हररलोई।"

12. As per the provisions of Section 383 I.P.C., it is necessary

that there must be an aggrieved person in the case of extortion.

Section 383 I.P.C. reads as under:-

"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".

Illustrations

(a) A threatens to publish a defamatory libel concerning Z unless Z gives

him money. He thus induces Z to give him money. A has committed

extortion.

(b) A threatens Z that he will keep Z's child in wrongful confinement,

unless Z will sign and deliver to A a promissory note binding Z to pay

certain monies to A. Z sings and delivers the note. A has committed

extortion.

and deliver to B a bond binding Z under a penalty to deliver certain

produce to B, and thereby induces Z to sign and deliver the bond. A has

committed extortion.

(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign

or affix his seal to a blank paper and deliver it to A. Z sings and delivers

the paper to A. Here, as the paper so signed may be converted into a

valuable security. A has committed extortion."

13. Section 384 I.P.C. reads as under:-

"Punishment for extortion- Whoever commits extortion shall be punished

with imprisonment of either description for a term which may extend to

three years, or with fine, or with both."

14. Evidently, the trial court rejected the discharge application

in the most mechanical manner without considering the

aforesaid provisions as well as the pronouncement of Hon'ble

Apex Court in the case of State of Haryana and others Vs.

Bhajan Lal and others reported in 1992 SCC (Cri.) 426 (Para

102). In the aforesaid judgement, Hon'ble Apex Court observed

that, in case, no offense is made out after going through the

entire F.I.R. or the evidence collected by the Investigating

Officer, the F.I.R as well as charge-sheet and its consequential

proceedings are liable to be set aside.

15. Para 102 of the aforesaid judgement reads as under:-

"102. In the backdrop of the interpretation of the various relevant

provisions of the Code under Chapter XIV and of the principles of law

enunciated by this Court in a series of decisions relating to the exercise of

the extraordinary power under Article 226 or the inherent powers under

Section 482 of the Code which we have extracted and reproduced above,

we give the following categories of cases by way of illustration wherein

such power could be exercised either to prevent abuse of the process of

any court or otherwise to secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined and sufficiently

channelised and inflexible guidelines or rigid formulae and to give an

exhaustive list of myriad kinds of cases wherein such power should be

exercised.

(1) Where the allegations made in the first information report or the

complaint, even if they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a case

against the accused.

(2) Where the allegations in the first information report and other

materials, if any, accompanying the FIR do not disclose a cognizable

offence, justifying an investigation by police officers under Section 156(1)

of the Code except under an order of a Magistrate within the purview of

Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint

and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(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 Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and

inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding

against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions

of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or

where there is a specific provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide

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 aforesaid context, the observations made by Hon'ble

Apex Court in the case of Salib @ Shalu @ Salim vs. State of

U.P. and others reported in Criminal Appeal No. 2344 of 2023

(Arising out of S.L.P. (Criminal) No. 3152 of 2023) dated

08.08.2023, in paragraphs nos. 22, 23, 24 & 25 are being

referred hereinbelow:-

"22. So from the aforesaid, it is clear that one of the necessary ingredients

of the offence of extortion is that the victim must be induced to deliver to

any person any property or valuable security, etc. That is to say, the

delivery of the property must be with consent which has been obtained by

putting the person in fear of any injury. In contrast to theft, in extortion

there is an element of consent, of course, obtained by putting the victim in

fear of injury. In extortion, the will of the victim has to be overpowered by

putting him or her in fear of injury. Forcibly taking any property will not

come under this definition. It has to be shown that the person was induced

to part with the property by putting him in fear of injury. The illustrations

to the Section given in the IPC make this perfectly clear.

23. In the aforesaid context, we may refer to the following observations

made by a Division Bench of the High Court of Patna in Ramyad Singh v.

Emperor in Criminal Revision No. 125 of 1931 (Pat):-

"If the facts had been that the complainant's thumb had been forcibly

seized by one of the petitioners and had been applied to the piece of paper

notwithstanding his struggles and protests, then I would agree that there is

good ground for saying that the offence committed whatever it may be,

was not the offence of extortion because the complainant would not have

been induced by the fear of injury but would have simply been the subject

of actual physical compulsion."

It was held:-

"It is clear that this definition makes it necessary for the prosecution to

prove that the victims Narain and Sheonandan were put in fear of injury to

themselves or to others, and further, were thereby dishonestly induced to

deliver papers containing their thumb impressions. The prosecution story

in the present case goes no further than that thumb impressions were

'forcibly taken from them. The details of the forcible taking were

apparently not put in evidence. The trial Court speaks of the wrists of the

victims being caught and of their thumb impressions being then 'taken'

The lower Courts only speak of the forcible taking of the victim's thumb

impression; and as this does not necessarily involve inducing the victim to

deliver papers with his thumb Impressions (papers which could no doubt

be converted into valuable securities). I must hold that the offence of

extortion is not established."

24. Thus, it is relevant to note that nowhere the first informant has stated

that out of fear, she paid Rs. 10 Lakh to the accused persons. To put it in

other words, there is nothing to indicate that there was actual delivery of

possession of property (money) by the person put in fear. In the absence of

anything to even remotely suggest that the first informant parted with a

particular amount after being put to fear of any injury, no offence under

Section 386 of the IPC can be said to have been made out.

25. However, as observed earlier, the entire case put up by the first

informant on the face of it appears to be concocted and fabricated. At this

stage, we may refer to the parameters laid down by this Court for

quashing of an FIR in the case of Bhajan Lal (supra). The parameters

are:-

"(1) Where the allegations made in the first information report or the

complaint, even if they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a case

against the accused.

(2) Where the allegations in the first information report and other

materials, if any, accompanying the FIR do not disclose a cognizable

offence, justifying an investigation by police officers under Section 156(1)

of the Code except under an order of a Magistrate within the purview of

Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint

and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable

offence but constitute only a non- cognizable offence, no investigation is