VIKRAM JOHAR versus THE STATE OF UTTAR PRADESH & ANR.

[2019] 8 S.C.R. 1

VIKRAM JOHAR

THE STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No.759 of 2019)

APRIL 26, 2019

[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]

Penal Code, 1860– ss. 504, 506 and 383, 384, 471 –Respondent No.2-complainant, was partner of Company engagedin business of wood processing and sale – Fire broke into thepremises of the Company – Company raised insurance claim –Insurance company appointed certified surveyor – Appellant,director of the certified surveyor, undertook the survey and submittedfinal survey report dated 23.09.2011 – Respondent No.2, filedapplication u/s.156(3), Cr.P.C, alleging offences u/ss.383, 384, 471,504 and 506, IPC by the appellant in an incident that allegedlytook place on 02.10.2011 – Insurance claim repudiated by theInsurance Company – Twice the concerned IOs submitted closurereport, whereafter protest petitions were filed by respondent no.2 –Eventually, Judicial Magistrate holding that no further investigationwas required directed that the matter be tried as complaint case –Application for discharge filed by the appellant – Rejected– Revisionbefore the High Court– Dismissed– On appeal, held: Appellant’srole was only of surveyor appointed by insurance company tosurvey and submit report on the fire insurance claim alleged by therespondent no.2 – Various correspondences were made byrespondent no.2 with the appellant and the insurance company –In the letter dated 11.09.2011, addressed to insurance company,there was no allegation made against the appellant – For the firsttime in letter dated 19.09.2011, allegation was made that theappellant asked money for the final survey report – It was onlyafter final survey report was submitted by the appellant on23.09.2011, that the incident dated 02.10.2011 was alleged in whichappellant was alleged to have threatened the respondent no.2 –Application u/s.156(3), Cr.P.C. was filed on 14.11.2011 – Whileconsidering the discharge application, the Court is to exercise itsjudicial mind to determine whether case for trial has been made out

Aor not – Allegation in the present case that the appellant had abusedthe complainant when taken on its face value does not satisfy theingredients of ss.504 and 506 – Intentional insult must be of such adegree that should provoke person to break the public peace orto commit any other offence – Judgment of the High Court and theorder of Chief Judicial Magistrate set aside – Appellant standsBdischarged from the offence u/ss.504 and 506 – Code of CriminalProcedure, 1973 – ss. 156(3), 239 and 245.

Penal Code, 1860– s.506 – Offence of criminal intimidation– Ingredients to be proved – Discussed.

CCode of Criminal Procedure, 1973– ss. 239 and 245 –Discharge application under – Power of Court – Scope – Held:While considering the discharge application, the Court is to exerciseits judicial mind to determine whether case for trial has been madeout or not – In such proceedings, the Court is not to hold the minitrial by marshalling the evidence.D

Allowing the appeal, the Court

HELD: 1.1 Appellant’s role was only of surveyor appointedby insurance company to survey and submit report on the fireinsurance claim alleged by the complainant with regard to incidentEdated 18.12.2010, which took place in his factory premises atKosikala, District Mathura. [Para 10] [9-G]

1.2 The appellant visited the premises at Kosikala and heldjoint inspection on 04.04.2011. Various correspondences weremade by the complainant with the appellant as well as insuranceFcompany. In the letter dated 11.09.2011, which was addressed toinsurance company, there was no allegation made against theappellant and for the first time in letter dated 19.09.2011 sent bythe Company, allegation was made against the appellant thatappellant has asked for money for the final survey report, whichwas submitted by the appellant on 23.09.2011, which was receivedGby insurance company on 27.09.2011. In the final survey reportrecommendation has been made to repudiate the claim due tomisrepresentation and false declaration made by the appellant,which is breach of policy condition. It was only after final surveyreport submitted by the appellant on 23.09.2011, which was

received on 27.09.2011 that the appellant alleged the incidentdated 02.10.2011, in which appellant has alleged to havethreatened the complainant. It is to be noted that applicationunder Section 156(3) of Cr.P.C. was filed for the first time on14.11.2011. [Paras 11, 12] [9-H; 10-A-D]

1.3 Twice the I.O. conducted the investigation and submitteda closure report, on which protest petition was filed. On theprotest petition, ultimately, the Judicial Magistrate decided totreat the case as complaint case. While considering thedischarge application, the Court is to exercise its judicial mindto determine whether case for trial has been made out or not.In such proceedings, the Court is not to hold the mini trial bymarshalling the evidence. [Paras 13 and 19] [10-G-H; 13-D]

1.4 The allegation in the complaint against the appellanttaken on its face value does not satisfy the ingredients of Sections504 and 506, IPC. The intentional insult must be of such degreethat should provoke person to break the public peace or tocommit any other offence. Here, the only allegation is that theappellant abused the complainant. Ingredients of Sections 504and 506 are not made out from the complaint filed by thecomplainant. When the complaint filed under Section 156(3)Cr.P.C., which has been treated as complaint case, does notcontain ingredients of Sections 504 and 506, Courts belowcommitted error in rejecting the application of discharge filed bythe appellant. The judgment of the High Court dated 06.02.2017as well as the order of Chief Judicial Magistrate dated 29.11.2016are set aside and the appellant stands discharged from the offenceunder Sections 504 and 506. [Paras 26-28] [17-B-D; 18-A-B]

Union of India v. Prafulla Kumar Samal & Another(1979) 3 SCC 4 : [1979] 2 SCR 229 ;State of Orissa v.Debendra Nath Padhi (2005) 1 SCC 568 : [2004] 6Suppl. SCR 460 ; Priyanka Srivastava and Another v.State of Uttar Pradesh and Others (2015) 6 SCC 287 ;Fiona Shrikhande v. State of Maharashtra & Another(2013)14 SCC 44 : [2013] 9 SCR 240 ;ManikTaneja and Another v. State of Karnataka and Another(2015) 7 SCC 423 : [2015] 1 SCR 156 – relied on.

ARatanlal & Dhirajlal on Law of Crimes 27[th] Edition –referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 759 of 2019

From the Judgment and Order dated 06.02.2017 of the High Courtof Judicature at Allahabad in Criminal Revision No. 155 of 2017D

Arvind Varma, Sr. Adv., Divyesh Pratap Singh, Ms. Saloni Tangri,Ms. Deeksha Gaur, Ms. Shivangi Singh, Shantanu Sharma, Advs. forthe Appellant.

Ms. Rukhmini Bobde, Ms. Swarupama Chaturvedi, Advs. forEthe Respondents.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J. 1. Leave granted.

2. This appeal has been filed challenging the judgment of theAllahabad High Court dated 06.02.2017 by which judgment, the criminalFrevision filed by the appellant was dismissed. The criminal revision wasfiled by the appellant challenging the order dated 29.11.2016 passed bythe Additional Chief Judicial Magistrate rejecting his discharge applicationmoved under Section 239 read with Section 245 Cr.P.C. in complaintcase No.483 of 2013 under Section 504 and 506 of I.P.C.G3. The brief facts of the case, which need to be noted for decidingthis appeal are:-

3.1 The respondent No.2 (hereinafter referred to as “complainant”),was partner of M/s. Ram Company engaged in business of

wood processing and sale. The company had its premises atKosikala, District Mathura, Uttar Pradesh.

3.2 On 18.12.2010 at 3.00 AM fire broke into the premises of M/s.Ram Company. Fire brigade and police were informed, whichreached on the spot and fire could be controlled after severalhours. The cause of fire was shown as electric short circuit inelectric cable. Fire caused damages of stocks, plant andmachinery and building. M/s. Ram Company had taken aStandard Fire & Special Perils Policy from M/s. United IndiaInsurance Co. Ltd. M/s. Ram Company had submittedinsurance claim on 20.12.2010. Total claim raised by thecompany was Rs.3,62,45,114/-. The United India InsuranceCo. Ltd. (hereinafter referred to as “insurance company”)appointed the appellant M/s. Protocol Surveyor and EngineersPrivate Limited, who is certified surveyor by InsuranceRegulatory and Development Authority. The appellant beingDirector of M/s. Protocol Surveyor and Engineers PrivateLimited undertook survey of insurance claim of the company.

3.3 On 04.04.2011, the appellant visited the premises at Kosikala,District Mathura for the purposes of preparing survey report.Joint Inspection note was prepared on 04.04.2011, for whichvarious documents were asked from the company. Aftervarious correspondences, the appellant submitted final surveyreport dated 23.09.2011. M/s. Ram Company wrote letterdated 15.07.2011 and 22.07.2011to the surveyor, which wasduly replied on 23.07.2011 by the surveyor. M/S. Ram Companyhas also written to insurance company, which was replied byinsurance company on 08.08.2011 informing M/s. RamCompany that surveyors have been asked to submit their finalreport at the earliest.

3.4 On 11.09.2011, the M/s Ram companysubmitted letter toinsurance company requesting to make payment of policyamount of Rs. 285.60 Lacs. In the said letter, some complaintswere also made against the surveyor. Again on 19.09.2011, aletter was sent by M/s. Ram Company to the insurancecompany, where allegations were made against the surveyor.The surveyor, i.e., the appellant submitted final report on

ABCD

23.09.2011 with regard to claim of M/s. Ram Company, in detailnoticing all aspects of the matter. In the Survey Report in thelast paragraph, following 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 stockquantity.

(d) The insured had made false declaration on the stock valuedeclaration.

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 declarationbe made or used in support thereof if any fraudulent means ordevices are used by the insured or any one acting on his behalf toobtain any benefit under the policy or if the loss or damage beoccasioned 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 declarationhave breached both the above stated policy conditions.

In view of above, that the subject claim is not admissible underthe captioned policy of insurance.

This report is being submitted without prejudice and is subject tothe terms and conditions of the policy of insurance.

Signed

Protocol Surveyors & Engineers Pvt. Ltd.”

3.5 On 14.11.2011, respondent No.2, i.e., complainant filed anapplication under Section 156(3) Cr.P.C. alleging offences underSections 383, 384, 471, 504 and 506 I.P.C. In the complaint,allegation was made against the appellant that he alongwithtwo or three other unknown persons, one of whom was holding

revolver, came to the complainant’s house on 02.10.2011 at7.00 PM and abused him in filthy language and was about toassault him, When some neighbours arrived there, the appellantand two or three other unknown persons fled the spot on theirvehicle. On the above application dated 14.11.2011, on theorder of the Magistrate, first information report was lodgedbeing F.I.R. No.367 of 2011 under Sections 383, 384, 471, 504and 506 I.P.C. registered on 24.11.2011. Insurance companyby letter dated 12.12.2011 repudiated the claim of M/s. RamCompany. Paragraph Nos. 3, 4 and 5 of the said letter are tothe following effect:-

“3. That during the course of carrying out survey & assessmentof this claim, the overall approach & conduct of the surveyorwas found to be satisfactory.

4. That the said surveyors submitted copy of their FinalSurvey report No.2010-DEC-131 dated 23 September, 2011to this office on 27 September, 2011.

5. That after scrutiny of the submitted survey report and inconsultation with the technical team of our Head Office, wehave repudiated the said claim vide our letter ref.no.VKJ:RK:FC:2011: 235:11 dated 06.12.2011.”

3.6 I.O. conducted the investigation calling the appellant also andsubmitted closure report. In the closure report, I.O. also hadstated that as per the call details and location of Vikram Singh’smobile (appellant), there was no roaming of his mobile from 1[st]October to 4[th] October and his location was within the NCRarea. After recording the statements of several persons, theI.O. submitted final form, closure report. Against the report, aprotest petition was filed by the complainant before the JudicialMagistrate, who by order dated 18.05.2012 allowed the protestpetition and directed for further investigation in the Crime No.448 of 2011. Further investigation was also conducted byanother I.O., who again submitted final report opining thatno offence has been committed. Again, protest petition wasfiled. The Judicial Magistrate by Order dated 21.12.2012 heldthat no further investigation is required and it shall be justifiedto try and dispose of the case as complaint case.

AComplainant’s statement under Section 200Cr.P.C wasrecorded. 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 theappellant under Sections 504 and 506 I.P.C. Against the orderBdated 07.02.2014 an application under Section 482 Cr.P.C. wasfiled by the appellant in the Allahabad High Court, whichapplication was disposed of by the High Court by order dated30.07.2014. High Court while disposing of the application underSection 482 Cr.P.C. observed that in case, if dischargeapplication is moved by the applicant within 30 days, it isCexpected that the same shall be considered and decided by areasoned and speaking order, and till disposal of the applicationon merit, no coercive action shall be taken against the appellant.

3.8 An application was filed by the applicant under Section 239read with Section 245 Cr.P.C. before the Court of JudicialDMagistrate praying that appellant be discharged. In theapplication under Sections 239 and 245, details of claim, variousreports and consideration by insurance company wasmentioned. Additional Chief Judicial Magistrate vide its orderdated 29.11.2016 rejected the application for discharge againstEwhich Criminal Revision was filed in the High Court, whichhas been dismissed on 06.02.2017. Aggrieved, by above order,this appeal has been filed.

4. Learned counsel for the appellant in support of this appealcontends that complaint filed by the complainant was nothing butFproceeding for harassment of the appellant. The appellant, who wassurveyor having given adverse reports regarding the fire claim of thecompany,thecomplainant due to annoyance and to teach lesson to theappellant has filed the complaint. It is submitted that incident is allegedof 02.10.2011 when appellant is claimed to be visited his house andthreatened him whereas the complaint in the Court of Chief JudicialGMagistrate was filed on 14.11.2011, i.e., about more than one month and12 days, which itself indicate that whole story was concocted to harassthe appellant. It is submitted that police after making thorough investigationtwice have found no offence committed and has submitted the closurereport. It is submitted that ingredients of offence under Sections 504Hand 506 are not made out on the reading of the complaints and Chief

Judicial Magistrate committed error in rejecting the discharge application.High Court also did not advert to the allegations of the complaint andfailed to notice that ingredients of offence under Sections 504 and 506are not made out.

5. Learned counsel appearing for the respondents have refutedthe submissions of the appellant and submits that there was sufficientmaterial before the Judicial Magistrate to issue process to summon theappellant and there was no ground for discharging the appellant fromthe offence. The allegations in the complaint makes out case underSections 504 and 506 and no error has been committed by learnedAdditional Chief Judicial Magistrate in rejecting the discharge applicationand the High Court in dismissing the criminal revision.

6. Learned counsel for the parties have also placed reliance onvarious judgments of this Court, which shall be referred to whileconsidering the submissions in detail.

7. We have considered the submissions of the learned counsel forthe parties and have perused the records.

8. The question to be considered and answered in this appeal is asto whether in the present case, appellant was entitled to be dischargedfrom the offence under Sections 504 and 506 and whether Courts belowcommitted error in rejecting the discharge application.

9. We have noticed the facts and sequence of events, which ledto filing of the application under Section 156(3) Cr.P.C. by the complainantagainst the appellant. We, in the present case, are not concerned on themerits of the claim of the complainant regarding insurance claim of thecomplainant pertaining to fire incident dated 18.12.2010. Ourconsideration has to confine only to the question as to whether theappellant has made out case for discharge under Sections 504 and 506I.P.C.

10. From the facts noticed above, it is clear that appellant’s rolewas only of surveyor appointed by insurance company to survey andsubmit report on the fire insurance claim alleged by the complainantwith regard to incident dated 18.12.2010, which took place in his factorypremises at Kosikala, District Mathura.

11. The appellant is Director of M/s. Protocol Surveyor &Engineers Pvt. Ltd. at Sector-7, Noida, Uttar Pradesh. Appellant visited

Athe premises at Kosikala and held jointinspection on 04.04.2011. Variouscorrespondences were made by the complainant with the appellant aswell as insurance company. In the letter dated 11.09.2011, which wasaddressed to insurance company, there was no allegation made againstthe appellant and for the first time in letter dated 19.09.2011 sent by M/s. Ram Company, allegation was made against the appellant that appellantBhas asked for money for the final survey report, which was submitted bythe appellant on 23.09.2011, which was received by insurance companyon 27.09.2011.

12 We have noticed above that in the final survey reportrecommendation has been made to repudiate the claim due toCmisrepresentation and false declaration made by the appellant, which isbreach of policy condition. The incident alleged against the appellant isdated 02.10.2011, i.e., immediately after submission of final survey report.It was only after final survey report submitted by the appellant on23.09.2011, which was received on 27.09.2011 that the appellant alleged

Dthe incident dated 02.10.2011, in which appellant has alleged to havethreatened the complainant. It is to be noted that application under Section156(3) of Cr.P.C. was filed for the first time on 14.11.2011, copies ofwhich is brought as Annexure P-9. The allegation in the complaint againstthe appellant with regard to incident dated 02.10.2011 are as follows:-

E“…………..When the complainant did not entertain the accusedSurveyor VikaramJohar, he and 2-3 other unknown persons, oneof whom was holding revolver, whom the complainant canidentify, came to the complainant’s house on 2.10.2011 at 7.00Pm and abused him in filthy language and about to assault him.When some neighbour arrived there, the Surveyor VikaramJohar,Fhe and 2-3 other unknown persons fled the spot on their vehicle.The people who had saved the complainant has seen theoccurrence.”

13. Twice the I.O. have conducted the investigation and submitteda closure report, on which protest petition was filed. On the protestGpetition, ultimately, the Judicial Magistrate by Order dated 21.12.2012decided to treat the case as complaint case. The complainant as wellas its witnesses appeared in the witness box and supported the incidentdated 02.10.2011.

14. Before we proceed to further examine the facts of the presentcase, we may notice the ambit and scope of power of the Court at thetime 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 noticingSection 227 in paragraph No.7, this Court held following:-

“7. XXXXXXXXXX

The words “not sufficient ground for proceeding against theaccused” clearly show that the Judge is not mere post office toframe the charge at the behest of the prosecution, but has toexercise his judicial mind to the facts of the case in order todetermine whether case for trial has been made out by theprosecution. In assessing this fact, it is not necessary for the courtto enter into the pros and cons of the matter or into weighingand balancing of evidence and probabilities which is really hisfunction after the trial starts. At the stage of Section 227, theJudge has merely to sift the evidence in order to find out whetheror not there is sufficient ground for proceeding against the accused.The sufficiency of ground would take within its fold the nature ofthe evidence recorded by the police or the documents producedbefore the court which ex facie disclose that there are suspiciouscircumstances against the accused so as to frame charge againsthim.”

16. After considering the earlier cases of this Court, in paragraphNo.10, following principles were noticed:-

“10. Thus, on consideration of the authorities mentioned above,the following principles emerge:

(1) That the Judge while considering the question of framing thecharges under Section 227 of the Code has the undoubtedpower to sift and weigh the evidence for the limited purposeof finding out whether or not prima facie case against theaccused has been made out.

(2) Where the materials placed before the Court disclose gravesuspicion against the accused which has not been properly

Aexplained the Court will be fully justified in framing chargeand proceeding with the trial.

(3) The test to determine prima facie case would naturally dependupon the facts of each case and it is difficult to lay down ruleof universal application. By and large however if two viewsBare equally possible and the Judge is satisfied that the evidenceproduced before him while giving rise to some suspicion but notgrave suspicion against the accused, he will be fully within hisright to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of theCCode the Judge which under the present Code is senior andexperienced court cannot act merely as Post Office or amouthpiece of the prosecution, but has to consider the broadprobabilities of the case, the total effect of the evidence andthe documents produced before the Court, any basic infirmitiesappearing in the case and so on. This however does not meanDthat the Judge should make roving enquiry into the pros andcons of the matter and weigh the evidence as if he wasconducting trial.”

17. Three-Judge Bench of this Court inState of Orissa Vs.DebendraNathPadhi, (2005) 1 SCC 568, had occasion to considerEdischarge under Section 227, it was held by the court that Section 227was incorporated in the Code with view to save the accused fromprolonged harassment which is necessary concomitant of protractedcriminal trial. It is calculated to eliminate harassment to accused personswhen the evidential materials gathered after investigation fall short ofFminimum legal requirements.

18. Another judgment of this Court, which is to be referred isPriyanka Srivastava and Another Vs. State of Uttar Pradesh andOthers, (2015) 6 SCC 287. This Court in the above case has noticedthe potentiality of misuse of Section 156(3) to harass those, who areGentrusted with various statutory functions. This Court, in fact, has madeobservations that application under Section 156(3) Cr.P.C. has to besupported by an affidavit so that person making allegation should takeresponsibility of what they have said in the complaint. In paragraphNo.30, following has been held:-

“30. In our considered opinion, stage has come in this countrywhere Section 156(3) CrPC applications are to be supported byan affidavit duly sworn by the applicant who seeks the invocationof the jurisdiction of the Magistrate. That apart, in an appropriatecase, the learned Magistrate would be well advised to verify thetruth and also can verify the veracity of the allegations. This affidavitcan make the applicant more responsible. We are compelled tosay so as such kind of applications are being filed in routinemanner without taking any responsibility whatsoever only to harasscertain persons. That apart, it becomes more disturbing andalarming when one tries to pick up people who are passing ordersunder statutory provision which can be challenged under theframework of the said Act or under Article 226 of the Constitutionof India. But it cannot be done to take undue advantage in criminalcourt as if somebody is determined to settle the scores.”

19. It is, thus, clear that while considering the discharge application,the Court is to exercise its judicial mind to determine whether case fortrial has been made out or not. It is true that in such proceedings, theCourt is not to hold the mini trial by marshalling the evidence.

20. After noticing the nature of jurisdiction to be exercised by theCourt at the time of discharge, we now revert back to the facts of thepresent case, where taking an allegation of complaint as correct on theface of it, whether offences under Sections 504 and 506 is made out, isa question to be answered.

21. We need to notice Sections 503, 504 and 506 for appreciatingthe issues, which has come up for consideration, which are to the followingeffect:-

“503. Criminal intimidation.—Whoever threatens another withany injury to his person, reputation or property, or to the person orreputation of any one in whom that person is interested, with intentto cause alarm to that person, or to cause that person to do anyact which he is not legally bound to do, or to omit to do any actwhich that person is legally entitled to do, as the means of avoidingthe execution of such threat, commits criminal intim-idation.

Explanation.—A threat to injure the reputation of any deceasedperson in whom the person threatened is interested, is within thissection.

A504. Intentional insult with intent to provoke breach of thepeace.—Whoever intentionally insults, and thereby gives provoca-tion to any person, intending or knowing it to be likely that suchprovocation will cause him to break the public peace, or to commitany other offence, shall be punished with imprisonment of eitherdescription for term which may extend to two years, or withBfine, or with both.

506. Punishment for criminal intimidation.—Whoevercommits, the offence of criminal intimidation shall be punishedwith imprisonment of either description for term which mayextend to two years, or with fine, or with both;

If threat be to cause death or grievous hurt, etc.—And ifthe threat be to cause death or grievous hurt, or to cause thedestruction of any property by fire, or to cause an offencepunishable with death or imprisonment for life, or withimprisonment for term which may extend to seven years, or toimpute, unchastity to woman, shall be punished with imprison-ment of either description for term which may extend to sevenyears, or with fine, or with both.”

22. Section 504 of I.P.C. came up for consideration before thisCourt in Fiona Shrikhande Vs. State of Maharashtra & Another,E(2013) 14 SCC 44. In the said case, this Court had occasion to examineingredients of Section 504, which need to be present before proceedingto try case. The Court held that in the said case, the order issuingprocess was challenged by filing criminal revision. This Court heldthat at the complaint stage, the Magistrate is merely concerned with theFallegations made out in the complaint and has only to prima facie satisfywhether there are sufficient grounds to proceed against the accused. Inparagraph No.11, following principles have been laid down:-

“11. We are, in this case, concerned only with the question as towhether, on reading of the complaint, prima facie case hasbeen made out or not to issue process by the Magistrate. The lawas regards issuance of process in criminal cases is well settled.At the complaint stage, the Magistrate is merely concerned withthe allegations made out in the complaint and has only to primafacie satisfy whether there are sufficient grounds to proceedagainst the accused and it is not the province of the Magistrate to

enquire into detailed discussion on the merits or demerits of theAcase. The scope of enquiry under Section 202 is extremely limitedin the sense that the Magistrate, at this stage, is expected toexamine prima facie the truth or falsehood of the allegations madein the complaint. The Magistrate is not expected to embark upona detailed discussion of the merits or demerits of the case, butBonly consider the inherent probabilities apparent on the statementmade in the complaint. In Nagawwav.VeerannaShivalingappaKonjalgi, (1976) 3 SCC 736, this Courtheld that once the Magistrate has exercised his discretion in formingan opinion that there is ground for proceeding, it is not for theHigher Courts to substitute its own discretion for that of theCMagistrate. The Magistrate has to decide the question purely fromthe point of view of the complaint, without at all adverting to anydefence that the accused may have.”

23. In paragraph No.13 of the judgment, this Court has noticedthe ingredients of Section 504, which are to the following effect:-

“13. Section 504 IPC comprises of the following ingredients viz.(a) intentional insult, (b) the insult must be such as to giveprovocation to the person insulted, and (c) the accused must intendor know that such provocation would cause another to break thepublic peace or to commit any other offence. The intentional insultmust be of such degree that should provoke person to breakthe public peace or to commit any other offence. The person whointentionally insults intending or knowing it to be likely that it willgive provocation to any other person and such provocation willcause to break the public peace or to commit any other offence,in such situation, the ingredients of Section 504 are satisfied.One of the essential elements constituting the offence is that thereshould have been an act or conduct amounting to intentional insultand the mere fact that the accused abused the complainant, assuch, is not sufficient by itself to warrant conviction under Section504 IPC.”

24. In another judgment, i.e., ManikTaneja and Another Vs.State of Karnataka and Another, (2015) 7 SCC 423, this Court hasagain occasion to examine the ingredients of Sections 503 and 506. Inthe above case also, case was registered for the offence under Sections

A353 and 506 I.P.C. After noticing Section 503, which defines criminalintimidation, this Court laid down following in paragraph Nos. 11 and12:-

“11.Xxxxxxxxxxxxx

reading of the definition of “criminal intimidation” would indicatethat there must be an act of threatening to another person, ofcausing an injury to the person, reputation, or property of the personthreatened, or to the person in whom the threatened person isinterested and the threat must be with the intent to cause alarm tothe person threatened or it must be to do any act which he is notlegally bound to do or omit to do an act which he is legally entitledto do.

12. In the instant case, the allegation is that the appellants haveabused the complainant and obstructed the second respondentfrom discharging his public duties and spoiled the integrity of thesecond respondent. It is the intention of the accused that has tobe considered in deciding as to whether what he has stated comeswithin the meaning of “criminal intimidation”. The threat must bewith intention to cause alarm to the complainant to cause thatperson to do or omit to do any work. Mere expression of anywords without any intention to cause alarm would not be sufficientto bring in the application of this section. But material has to beplaced on record to show that the intention is to cause alarm tothe complainant. From the facts and circumstances of the case, itappears that there was no intention on the part of the appellantsto cause alarm in the mind of the second respondent causingobstruction in discharge of his duty. As far as the comments postedon Facebook are concerned, it appears that it is public forummeant for helping the public and the act of the appellants postinga comment on Facebook may not attract ingredients of criminalintimidation in Section 503 IPC.”

25. In the above case, allegation was that appellant had abusedthe complainant. The Court held that the mere fact that the allegationthat accused had abused the complainant does not satisfy the ingredientsof Section 506.

26. Now, we revert back to the allegations in the complaint againstthe appellant. The allegation is that appellant with two or three otherunknown persons, one of whom was holding revolver, came to thecomplainant’s house and abused him in filthy language and attempted toassault him and when some neighbours arrived there the appellant andthe other persons accompanying him fled the spot. The above allegationtaking on its face value does not satisfy the ingredients of Sections 504and 506 as has been enumerated by this Court in the above two judgments.The intentional insult must be of such degree that should provoke aperson to break the public peace or to commit any other offence. Themere allegation that appellant came and abused the complainant doesnot satisfy the ingredients as laid down in paragraph No.13 of the judgmentof this Court in Fiona Shrikhande (supra).

27. Now, reverting back to Section 506, which is offence of criminalintimidation, the principles laid down by Fiona Shrikhande (supra) hasalso to be applied when question of finding out as to whether theingredients of offence are made or not. Here, the only allegation is thatthe appellant abused the complainant. For proving an offence underSection 506 IPC, what are ingredients which have to be proved by theprosecution?Ratanlal&Dhirajlal on Law of Crimes, 27[th] Edition withregard 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 orproperty of some one in whom he was interested;

(iii) That he did so with intent to cause alarm to that person;or to cause that person to do any act which he was notlegally bound to do, or omit to do any act which he waslegally entitled to do as means of avoiding the executionof such threat.”

plain reading of the allegations in the complaint does not satisfyall the ingredients as noticed above.

28. On the principles as enumerated by this Court in FionaShrikhande (supra) and Manik Taneja (supra), we are satisfied that

Aingredients of Sections 504 and 506 are not made out from the complaintfiled by the complainant. When the complaint filed under Section 156(3)Cr.P.C., which has been treated as complaint case, does not containingredients of Sections 504 and 506, we are of the view that Courtsbelow committed error in rejecting the application of discharge filed bythe appellant. In the facts of the present case, we are of the view thatBappellant was entitled to be discharged for the offence under Sections504 and 506.

29. Thus, in result, the appeal is allowed. The judgment of theHigh Court dated 06.02.2017 as well as the order of Chief JudicialMagistrate dated 29.11.2016 are set aside and the appellant standsCdischarged from the offence under Sections 504 and 506.

Divya Pandey

Appeal allowed.