MANU/MH/0172/2001

Equivalent Citation: 2001ALLMR(Cri)425, 2001BomCR(Cri)691, 2001(103(2))BOMLR712, 2001CriLJ2127, 2001(4)MhLj507

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 1866 of 1995

Decided On: 05.02.2001

Appellants: Sanjay Pandey, D.C.P., Narcotic Cell, Bombay Vs.

Respondent: Chhaganlal J. Jain & Ors.

Hon'ble Judges/Coram: Dr. P.D. Upasani, J.

Counsels: For Appellant/Petitioner/Plaintiff: Mr. D.U. Miraskar, Adv.

For State: Ms. I.S. Thakur, A.P.P.

Subject: Criminal

Acts/Rules/Orders: Code of Criminal Procedure, 1973 (CrPC) - Section 204; Indian Penal Code 1860, (IPC) -Section 34, Indian Penal Code 1860, (IPC) - Section 104, Indian Penal Code 1860, (IPC) -Section 383, Indian Penal Code 1860, (IPC) - Section 384, Indian Penal Code 1860, (IPC) -Section 506

Case Note: Criminal Procedure Code, 1973 - Section 204 - Issue of process - Complaint to the Magistrate alleging offences of Sections 506(ii) and 384 of the Indian Penal Code -Ingredients of the offences complained of not made out - Issue of process - Abuse of process of law - Issuance of process set aside.

Held:

From the contents of para 5 in the complaint, ingredients of neither Section 506(ii) nor Section 384 of the I.P.C. are made out. Section 506(ii) comes into play when there is a threat to cause death or to cause destruction of any property by fire... etc. As far as Section 384 is concerned, the relevant Section is 383 which gives the definition of extortion. It states that extortion takes place when any person 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 property or valuable security, or anything signed or sealed which may be converted into a valuable security. In the present case at hand, the entire complaint, and more particularly, para 5 of the aforesaid complaint which refers to the present applicant does not at all reveal that any property or valuable security was delivered by the complainant to the accused No. 1 and that any threat was given by accused No. 2 to force the complainant to deliver the said property to accused No. 1. Thus, ingredients of extortion are not at all made out. Ingredients of Section 506 (ii) also are not revealed, in the said para, which refers to accused No. 2.

Thus, issuance of process against accused No. 2 was not at all proper and was indeed an abuse of the process of law and the same therefore, will have to be quashed and set aside.

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JUDGMENT

Dr. Pratibha Upasani, J.

1. This Criminal Application is made by the applicant/accused No. 2 Sanjay Pandey, being aggrieved by the order dated 22.2.1995 of issuance of process passed by Metropolitan Magistrate, 12th Court, Bandra, Mumbai in C.C. No. 13/S/1995. This order of issuance of process came to be issued against the accused No. 1 Ram Sanehi Ganesh Datta through Sanjay Pandey under Section 506(ii) r/w 104 of the I.P.C. At the behest of the complainant, Chhaganlal J, Jain filed his complaint dated 3.1.1995 against both the accused in the learned Metropolitan Magistrate ,12th Court at Bandra.

2. The contents of the complaint dated 3.1.1995 can be briefly narrated as follows :

The complainant's case was that he was residing at and in actual lawful possession of upper portion of first floor of GNMC 1-1/2, Naik Nagar, L.B.S. Marg, Near Sion Railway Station, Sion, Bombay - 400022 since 21.4.1982 and was residing there along with his family members. He was also carrying on shop of Adinath Metal Works since 1982, According to the complainant, accused No. 1 Shri Ram Sanehi G. Datta was having an evil eye on his residential cum commercial premises. He therefore, started harassing him and his family members. He was bringing pressure upon him and its family members compelling him to hand over possession of the said premises to accused No. 1 - Ram Sanehi Datta on the pretext that he was the owner thereof.

3. As per the complainant's story, on 18.11.1994, accused No. 1 gave the complainant threats that If he did not vacate the said premises and hand over possession to accused No. 1, he would kill him. The complainant lodged N. C. complaint on the same dale at Dharavi Police Station. Another complaint was lodged by him on 24.4.1994 at the same Police Station. However, no effective steps were taken by the police. Thereafter, the complainant also made complaint in the Court of Metropolitan Magistrate, 12th Court, Bandra, Mumbai, bearing case No. 759/N/94 under Section 145 of the Code of Criminal Procedure, 1973. He also filed a Civil Suit in the Bombay City Civil & Sessions Court, being Suit No. 7319 of 1994.

4. The complainant has further stated that thereafter, he was called at Dharavi Police Station by accused No. 2 Sanjay Pandey - D.C.P. on 22nd December, 23rd December and 26th December, 1994. Sanjay Pandey, who is roped in as accused No. 2 by the complainant, asked the complainant as to how long he was staying there. Thereafter, as per the complainant's story, accused No. 2 threatened the complainant that he would see how he would not vacate the premises. When the complainant showed the Court orders, which were in his favour, the said Sanjay Pandey said that he did not care for any orders and asked him to take deposit and vacate the premises. Accused No. 2, according to the complainant, also spoke to him in an insulting way in the presence of complainant's wife. Accused No. 2 also told the complainant to go back to his native place.

5. The complainant has further stated in his complaint that accused No. 1 also threatened him that in case he did not vacate the premises, he would teach him a lesson for lifetime. Thereafter, the abovementioned complaint dated 3.1.1995 came to be filed by the complainant, pursuance to which, the learned Metropolitan Magistrate, 11th Court at Bandra, Mumbai issued process against both the accused under Sections 384 and 506(ii) of the I.P.C. r/w 34 of the I.P.C. Being aggrieved, only accused No. 2-Sanjay Pandey has approached this Court by way of filing the present Criminal Application praying that the order of issuance of process against him in the abovementioned complaint, be quashed and set aside.

6. It is submitted, inter alia, by Mr. Miraskar, the learned Advocate appearing for the applicant, that the said order of issuance of process suffers from non-application of mind to the facts alleged in the complaint and is a gross abuse of process of law. He submitted that the complaint does not reveal that any property or valuable security was delivered by the complainant in

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pursuance to the threats allegedly given by accused No. 2. He also submitted that neither there was a delivery of possession of any property or security nor there was any threat and therefore, no offence was made out against accused No. 2/applicant.

7. Mr. Thakur. A.P.P. appearing for the State concedes to this position. I have heard both the Advocates. I have also gone through the complaint dated 3.1.1995.

8. As far as the present applicant Sanjay Pandey is concerned, the relevant paragraph in the complaint is para 5, which is reproduced below:

"The complainant says that he was called to the Dharavi Police Station and from there, he was called to Shri Sanjay Pandey, Deputy Commissioner of Police Office on 22nd, 23rd and 26th December, 1994 and asked me since how long I am staying there and thereafter he threatened me that he will see how I will not vacate the premises and when the complainant showed Court orders he said that he does not care for any orders and to take the deposit and vacate the premises. The complainant's wife was also present and told him that why you have come with your wife and take here to the Bazar in most insulting tone he spoke, and from originally I hail why you came to the City of Bombay and settle and go back to your original place."

9. It has to be stated that from the contents of the abovementioned para, ingredients of neither Section 506(ii) nor Section 384 of the I.P.C. are made out. Section 506(ii) comes into play when there is a threat to cause death or to cause destruction of any property by fire ..... etc. As far as Section 384 is concerned, the relevant Section is 383 which gives the definition of extortion. It states that extortion takes place when any person 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 property or valuable security, or any thing signed or sealed which may be converted into a valuable security. In the present case at hand, the entire complaint, and more particularly, para 5 of the aforesaid complaint which refers to the present applicant does not at all reveal that any property or valuable security was delivered by the complainant to the accused No. 1 and that any threat was given by accused No. 2 to force the complainant to deliver the said property to accused No. 1. Thus, ingredients of extortion are not at all made out. Ingredients of Section 506(ii) also are not revealed, in the said para, which refers to accused No. 2.

10. Thus, Issuance of process against accused No. 2 was not at all proper and was indeed an abuse of the process of law and the same therefore, will have to be quashed and set aside and the application will have to be allowed. Hence, following order :

"Criminal Application No. 1866 of 1995 is allowed in terms of prayer clause (a) only with respect to the accused No. 2/present applicant Sanjay Pandey and proceedings being C.C. No. 13/S/95 pending before the Metropolitan Magistrate, 12th Court, Bandra. Mumbai are quashed and set aside only with respect to original accused No. 2/present applicant Sanjay Pandey.

Rule made absolute in the above stated terms.

Interim order dated 21.7.1995 is hereby vacated."

Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar of this Court.

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