Abhishek Saxena v. The State of Uttar Pradesh

ORDER Leave granted.

¶1This appeal is directed against the order dated 23.10.2019 passed by the High Court of Judicature at Allahabad in Criminal Misc. Application No. 471 of 2018.

¶2FIR No. 839 of 2016 was registered at Sector 49 Noida, Police Station against the appellant, his parents and relatives on 4.9.2016 alleging commission of offences under Sections 323, 363, 384, and 406 of the Indian Penal Code. The charge sheet was subsequently filed on 22.8.2017 in respect of commission of offences under Sections 323, 384 and 406 I.P.C. Thereafter the accused, including the appellant herein, filed a n application under Section 482 CrPC seeking quashment of the FIR and the consequently filed chargesheet and the summoning order dated 19.09.2017 issued thereafter. As per the impugned order, the High Court declined to exercise the power under Section 482 CrPC and consequently dismissed the petition qua th e appellant.

¶3Heard learned Senior Counsel appearing for the appellant and the learned panel counsel for the State of Uttar Pradesh. Though notice was issued and served on the second respondent, she has chosen not to appear and contest the matter.

¶4As noticed hereinbefore, after the investigation, chargesheet was filed in respect of offences under Sections 323, 384 and 406 of the I.P.C. The first respondent has also filed counter affidavit. We have carefully gone through the materials on record. Having gone through the chargesheet, and the other material on record, we could not find necessary ingredients to attract the offences under Sections 323, 384 and 406 of the I.P.C. qua the appellant.

¶5As relates the allegation of commission of offence under Section 323, IPC besides the bald statement ‘when I asked these people about my daughter, they beat up me’ no material whatsoever to support the allegation causation of hurt is available on record much less voluntary causation of hurt. So also, about the demand of a sum of Rs. 20 Lakhs from her fathe r after about 15 days from 12.06.2016 from the house of second respondent’s father in Bareilly, the second respondent (the complainant) in her statement dated 25.09.2016 given to the Investigating Officer, submitted that she did not get registered an FIR or file any complaint in Bareilly. That apart, the unrefuted position of facts revealed from the materials on record is that the appellant herein has already filed a petition for dissolution of his marriage with the second respondent-complainant and also Application No.13/2016 under Sections 7, 10 and 17 of the Guardians & Wards Act, 1890 (for short ‘G&W Act’) for declaring him as the guardian of the person of the minor daughter by name ‘Anwesha Saxena’, before the learned Principal Judge, Family Court, Gautam Budh Nagar in Uttar Pradesh, on 16.05.2016. FIR No. 839/2016 was registered against the appellant, his parents and relatives on

04.09.2016 on the complaint of the second respondent only on 04.09.2016.

¶6Further relevant aspects for the purpose of consideration of the case on hand are that in the Application No. 13/2016 filed under ‘G&W Act’ as early as on 16.05.2016 the Appellant has mentioned clearly that the minor daughter ‘Anwesha Saxena’ is in his custody and beside him, his parents, persons named therein, who are respectively her Nana, Nani, Ma ma and Mami, are also residing in the house where the daughter ‘Anwesha Saxena’ ordinarily resides. It is months thereafter that the second res pondent filed the complaint causing registration of FIR No. 839/2 016 and filing of chargesheet. Add to it, it is relevant to note that in the FIR registered on

04.09.2016 the date of incident is shown as 12.06.2016 at 03.00 AM and date of information is shown as on 04.09.2016 at 09.30 AM and the delay in investigation is recorded as the delay in submitting information b y the complainant i.e., the second respondent herein. In the written complaint by the second respondent-complainant, the typed copy of which is pro duced in this proceeding, it is stated that on 12.06.2016 at about 03.05 PM in the afternoon, the appellant, his parents and relatives had caused disappearance of ‘Kumari Anwesha’ and when asked about the daughter they assaulted her, threw her out from fl at No. 4663 in the clothes which she was then wearing and jewellery weighing about 400 gms and Rs. 05,00,000/- in cash; were snatched from her. Furthermore, it is stated therein that the accused persons sent different persons and relatives to the applicant’s father Dr. Anil Gupta and demanded a sum of Rs. 20,00,000/- as ransom. In her statement attached to the FIR, produced in this proceeding, she stated that on 12.06.2016 the & ANR. appellant, his parents and relatives cause disappearance of her daugh ter and on being asked about her they had beaten her up and snatched golden jewellery and her own savings of Rs. 50,000/-.

¶7As the High Court did not endeavour to consider whether the chargesheet submitted showed prima facie case under Sections 323, 384 and 406, IPC for voluntarily causing hurt, for extortion and for crimi nal breach of trust, we think it inevitable to undertake such a con sideration as in the facts and circumstances while called upon to exercise the power under Section 482, CrPC the High Court was legally bound to see if allegations/accusations constitute any offence or not. As relates the alleged commission of offence under Section 323, IPC besides the bald statement of the second respondent-complainant ‘when I asked those people about my daughter, they beat up me’ no other material whatsoever is on record. In short, there is no material on record to support the all eged causation of hurt. Though the first respondent filed a counter affidavit nothing is stated / produced in regard to the said alleged offence.

¶8Bearing in mind the aforesaid materials on record we have carefully perused them and the chargesheet to ascertain w hether they disclose the ingredients to attract the offences under Secti ons 323, 384 and 406, IPC qua the appellant.

¶9As noted earlier, except the statement that ‘they beat u p me’ by the complainant no material whatsoever is available on record i n regard to the commission of the said offence. The incident allegedly occurr ed on 12.06.2016. In the recorded statement of the secon d respondent-complainant or in the counter affidavit filed by th e first respondent there is not even a whisper that after the incident she went to a doctor or underwent any kind of treatment. Needless to say, that the re is no statement – at least that injury report was prepared. In this context, it is also to be seen in respect of the incident, the FIR got registered only on 04.09.2016, that too much after the filing of petition No. 13/2016 by the appellant herein. Above all, as noted earlier, basic ingredients to constitute an offence under Section 323, IPC is lacking in the chargesheet.

¶10As relates the alleged commission of offence under Section 384, IPC there can be no doubt that to attract the said offence the following twin ingredients are to be satisfied:

(i) Intentionally putting a person in fear of injury to himself or another;

(ii) Dishonestly inducing the person so put to deliver to any person any property or valuable security. In the absence of such ingredients/accusations in the chargeshe et to constitute the said offence it cannot be said a prima facie case of commission of offence under Section 384 is made out therein.

¶11Now, we will consider the accusation of commission of offence under Section 406, IPC. The essential ingredients to constitute an offence under Section 406, IPC are as follows:

(i) Entrusting any person with property or with any dominion over property;

(ii) the person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do i n violation –

(i) of any direction of law prescribing the mode in which such trust is to be discharge, or;

(ii) of any legal contract made touching the discharge of such trust In the absence of basic ingredient of entrustment of property and dishonest usage or disposal of any such property to satisfy the offence punishable under Section 406, IPC in the present ca se, the charge of commission of the offence thereunder also cannot be attracted.

¶12In the circumstances obtained as above, we are of the considered view that no useful purpose is likely to be served by allowing crimina l prosecution against the appellant to continue based on the aforesaid chargesheet as ingredients of all the aforementioned offences are wanting in this case. We have no hesitation to hold that the High Court has clearly fallen in error in not invoking the powers under Section 482, CrPC to quash the proceedings qua the appellant.

¶13We are, therefore, inclined to allow this appeal. Consequently, the order dated 23.10.2019 passed by the High Court in Criminal Misc. Application No. 471 of 2018 qua the appellant is quashed and set asi de. & ANR. Consequently, FIR dated 4.9.2016 bearing Case Crime No. 839 of 2016 as also the chargesheet filed in Case Crime No. 839 of 2016 under Sections 323, 384 and 406 of the I.P.C. and the summoning order dated 19.09.2017 in case No.2986 of 2017 passed by the learned IInd Additional Chief Judicial Magistrate, Gautam Budh Nagar, U.P., stand quashed, qua the appellant herein. Pending application(s), if any, stands disposed of. Headnotes prepared by: Appeal allowed. Ankit Gyan

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.3628 of 2023. From the Judgment and Order dated 23.10.2019 of the High Court of Judicature at Allahabad in A482 No.471 of 2018.

Vinod Prasad, Sr. Adv., Ajay Kumar Srivastava, Dhirendra Kumar, Bijender Singh, Devvrat Rana, Pawan Tyagi, Mrs. San no Kumar, Ms. Jyoti Tiwary, Advs. for the Appellant. Divyesh Pratap Singh, Rajat Singh, Chandra Shekhar Suman, Sarthak Chandra, Arun Pratap Singh Rajawat, Advs. f or the Respondent. & ANR.