Dhananjay @ Dhananjay
Kumar
Singh
Vs.
State of Bihar &
Anr. [2007] Insc 86 (2 February 2007)
S.B. Sinha & Markandey Katju
[Arising out of S.L.P. (Crl.) No. 3978 of 2006] S.B. Sinha, J.
Leave granted.
This appeal is directed against a judgment and order dated 18.4.2006 passed
by the High Court of Judicature at Patna in Criminal Miscellaneous No.10432 of
2003, whereby and whereunder a compromise between the parties was not accepted
as the appellants were said to be involved in commission of an offence under
Section 384 of the Indian Penal Code,
1860.
The basic fact of the matter is not in dispute. A written report was lodged
on 6.9.2000 by the 2nd respondent herein alleging that on 31.8.2000 at about
5.00 p.m. some unknown persons had come to his room No.207 at Jagat Trade
Centre at Fraser Road, Patna and informed him that as a sum of Rs.1500/- was
due to him, he should make the payment thereof. Allegedly, on his reply that he
would make the payment only of the amount due from him as per settled accounts;
abusive language was used and he was slapped by one Gautam Dubey. A sum of
Rs.1580/- was said to have been taken away from his upper pocket. A First
Information Report was lodged on the basis of the said report after six days
from the alleged date of commission of the offence. The parties, however,
arrived at an amicable settlement of their dispute. A charge-sheet was filed on
completion of investigation on 2.2.2001 against the appellant herein purported
to be for an offence under Sections 323, 384, 504 read with Section 34 of the Indian Penal Code.
An application for discharge was filed by the appellant under Section 239 of
the Code of Criminal Procedure, 1973, inter alia, on the premise that the
disputes between the parties had been settled. The said application was
rejected by the learned Judicial Magistrate on the ground that Section 384 of
the Indian
Penal Code being non-compoundable, the said application was not
sustainable. An application filed by the appellant before the High Court under
Section 482 of the Code of Criminal Procedure was dismissed by reason of the
impugned judgment, relying on or on the basis of a decision of this Court in Bankat
& Anr. vs. State of Maharashtra [(2005) 1 SCC 343].
Submission of Mr. Kumar Parimal, learned counsel appearing on behalf of the
appellant herein was that the High Court committed a manifest error in arriving
at the said finding inasmuch as the First Information Report, even if given
face value and taken to be correct in its entirety, does not disclose any
offence under Section 384 of the Indian Penal Code.
Section 384 provides for punishment for extortion. What would be an
extortion is provided under Section 383 of the Indian Penal Code
in the following terms:
-
"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"."
A bare perusal of the aforementioned provision would demonstrate that the
following ingredients would constitute the offence :
-
The accused must put any person in
fear of injury to that person or any other person.
-
The putting of a person in such fear
must be intentional.
-
The accused must thereby induce the
person so put in fear to deliver to any person any property, valuable security
or anything signed or sealed which may be converted into a valuable security.
-
Such inducement must be done
dishonestly.
A First Information Report as is well known, must be read in its entirety.
It is not in dispute that the parties entered into transactions relating to
supply of bags. The fact that some amount was due to the appellant from the
First Informant, is not in dispute. The First Information Report itself
disclosed that accounts were settled a year prior to the date of incident and
the appellant owed a sum of about Rs.400-500 from Gautam Dubey.
According to the said Gautam Dubey, however, a sum of Rs.1500/- only was due
to him.
It is in the aforementioned premise the allegations that Gautam Dubey and
the appellant slapped the First Informant and took out Rs.1580/- from his upper
pocket must be viewed.
No allegation was made that the money was paid by the informant having been
put in fear of injury or putting him in such fear by the appellant was
intentional.
The First Informant, admittedly, has also not delivered any property or
valuable security to the appellant.
A distinction between theft and extortion is well known. Whereas offence of
extortion is carried out by over-powering the will of the owner; in commission
of an offence of theft the offender's intention is always to take without that
person's consent.
We, therefore, are of the opinion that having regard to the facts and
circumstances of the case, no case under Section 384 of the Indian Penal Code was made
out in the First Information Report.
It is true that having regard to the decision of this Court in Bankat
(supra) that the Courts would have no power to allow compromise of a
prosecution when the same is not permissible in terms of Section 320 of Code of
Criminal Procedure. Therein it was held :
"In our view, the submission of the learned counsel for the respondent
requires to be accepted. For compounding of the offences punishable under IPC,
a complete scheme is provided under Section 320 of the Code. Sub-section (1) of
Section 320 provides that the offences mentioned in the table provided thereunder
can be compounded by the persons mentioned in column 3 of the said table.
Further, sub-section (2) provides that the offences mentioned in the table
could be compounded by the victim with the permission of the court. As against
this, sub-section (9) specifically provides that "no offence shall be
compounded except as provided by this section". In view of the aforesaid
legislative mandate, only the offences which are covered by Table 1 or Table 2
as stated above can be compounded and the rest of the offences punishable under
IPC could not be compounded."
We may, however, notice that in Badrilal vs. State of M.P. [(2005) 7 SCC 55]
a Division Bench of this Court held as under :
"A joint petition of compromise has been filed on behalf of the parties
in which prayer has been made for recording the compromise. The offence under
Section 307 IPC is not a compoundable one, therefore, compromise cannot be
recorded, but at the same time it is well settled that while awarding sentence
the effect of compromise can be taken into consideration. It has been stated
that the appellant has remained in custody for a period of about 14 months and
there is no allegation that he assaulted the deceased. In the facts and
circumstances of the case, we are of the view that ends of justice should be
met in case the sentence of imprisonment awarded against the appellant by the
trial court and reduced by the High Court is further reduced to the period
already undergone."
We need not, having regard to the facts and circumstances, go into the
aforementioned contentious issue in the instant case, as we are of the view
that no case has been made out for proceeding against the appellant under
Section 384 of the Indian Penal Code.
In that view of the matter, there was absolutely no reason as to why the
settlement arrived at by and between the parties could not have been accepted,
as the same would not come within the purview of Sub-Section (9) of Section 320
of the Code of Criminal Procedure.
For the reasons aforementioned, while quashing the charge framed under
Section 384 of the Indian Penal Code,
we direct the learned Magistrate to proceed to consider the question in regard
to the maintainability of the compromise petition between the parties in
accordance with law.
The appeal is allowed. No costs.
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