SUPREME COURT ACQUITS THE ACCUSED AS PROSECUTION FAILED TO ESTABLISH INTENTIONAL INSULT CAUSING PROVOCATION TO COMMIT AN OFFENCE

A two Judge Bench of the Supreme Court comprising of Justice B.R. Gavai and Justice J.B. Pardiwala passed a Judgment dated 08.08.2023, in Mohammad Wajid & Anr v. The State of U.P. & Ors, Criminal Appeal No. 2340 of 2023, and held that mere abuse, impoliteness or rudeness may not qualify as an intentional insult under Section 504 of the Indian Penal Code 1860 (Intentional insult with intent to provoke breach of the peace), unless there is material evidence to prove insult and provocation of a person by the accused in a manner that the other person becomes likely to commit an offence.

Facts

1) In the present case, one Ram Kumar, the Complainant, filed a Complaint dated 19.09.2022 with the Mirzapur Police Station, District Saharanpur, against Six Accused persons namely, Mohd. Haji Iqbal alias Bala (Accused No.2 – Appellant No. 2), Mehmood Ali, the Appellant No. 2’s Brother, Afjal, the Appellant No. 2’s Son, Alishan, the Appellant No. 2’s Son, Javed, the Appellant No. 2’s Son and Mohammad Wajid (Accused No.1 – Appellant No. 1), the Appellant No. 2’s Son, stating that in 2021, when the Complainant and his brother, Raj Kumar went to the Appellant No. 2’s house situated at Mirzapur, Saharanpur and requested him to not disturb the peace and tranquility of the Complainant’s land situated at Khasra No. 256/1, Village Mayapur, Mirzapur, District Saharanpur (Land), the Appellant No. 2 and his Sons abused and assaulted the Complainant and his brother.

2) The Complainant further alleged that the Accused persons pointed a pistol on the Complainant’s forehead and forcibly took an amount of Rs. 2 Lakh from the Complainant’s pocket. Further it is alleged that Accused persons threatened the Complainant that in case he told anyone about the incident then all his family members will be eliminated. It is further alleged that the Accused persons forcibly got the signatures of the Complainant and his brother on a blank stamp paper and after being robbed of their money, the Complainant and his brother quietly returned home.

3) Based on the aforesaid Complaint, the Police registered an FIR against the Accused 1 to 6 in Crime No. 224 of 2022 for the offences punishable under Sections 395 of the Indian Penal Code, 1860 (IPC) (Punishment for dacoity), 504 IPC (Intentional insult with intent to provoke breach of the peace), 506 IPC (Punishment for criminal intimidation), and 323 IPC (Punishment for voluntarily causing hurt), read with Section 34 IPC (Acts done by several persons in furtherance of a common intention), and took up the investigation.

4) Aggrieved, the Appellants-Accused filed Criminal Miscellaneous Writ Petition No. 15174 of 2022 before the High Court of Judicature at Allahabad (High Court) seeking quashing of FIR. The High Court rejected the Writ Petition filed by the Accused vide Order dated 17.10.2022 and observed as under:-

Perusal of the impugned first information report prima facie reveals commission of cognizable offence. Therefore, in view of the law laid down by Hon’ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918 and in Special Leave to Appeal (Crl.) No.3262/2021 (Leelavati Devi @ Leelawati & another vs. the State of Uttar Pradesh) decided on 07.10.2021, no case has been made out for interference with the impugned first information report.

Therefore, the writ petition is dismissed leaving it open for the petitioners to apply before the competent court for anticipatory bail/bail as permissible under law and in accordance with law.”

5) Aggrieved by the High Court Order dated 17.10.2022, the Appellant filed Criminal Appeal No. 2340/2023 before the Supreme Court.

Appellants’ Submissions

i) That First Information Report is absolutely false and frivolous

ii) That the Offence of Dacoity is clearly not made out against the Appellants

iii) That the Appellants claimed that it is extremely unlikely that the Complainant, who was aware of the criminal history of Appellant No. 2 Iqbal, would visit the home of the Accused Appellant No. 2 while carrying a significant sum of cash, Rs. 2 Lakh, and would then keep quiet for a full year following the alleged incident.

iv) There is no injury or medical report to support the claim that the Accused persons assaulted the Complainant and his brother Raj Kumar, despite the allegations thereof.

v) The FIR makes no reference to the incident’s time or date. The alleged event took place in 2021, but the FIR was filed with a delay of one year, i.e. on 19.09.2022.

Prosecution Submissions

a) That the Appellant No.2 is the most wanted Criminal in the area of Mirzapur, District Saharanpur creating terror in the minds of the citizens. He is a known sand mafia, land grabber having grabbed Government Land, Forest Land, Poor Farmers’ Land and built a university namely Glocal University, Saharanpur in the area of more than 700 Acres. The Office of Senior Superintendent of Police, Meerut Zone, Meerut, vide its Office Memo dated 11.02.2023, had declared Iqbal @ Bala a most wanted criminal with a prize money of Rs. 1,00,000/-.

b) That the Appellant is fleeing the proceedings, and numerous lookout notices have been issued against him. He hasn’t shown up even once in any case and has already vanished. Thus, nobody could be given relief who refused to comply with the investigation.

c) That various Notices under Section 41A of the Code of Criminal Procedure 1973 (Notice of appearance before police officer) had been issued against the Accused-Appellant No. 2 in numerous instances. Despite receiving notices, the Appellant No.2 failed to appear in court or cooperate with investigations in any criminal case.

d) The Appellant No.2 has been involved in more than 45 criminal cases including Rape Cases, Illegal Mining, Land Grabbing, Fraud Cases, Assault Cases and other criminal cases since 1990.

Supreme Court Analysis

The following questions were for Court’s consideration, after reviewing the documents on record:

I) Does the FIR’s plain reading reveal the commission of the dacoity offence, which is punishable under Section 395 of the IPC? In other words, even if the Prosecution’s entire evidence is accepted as accurate, are the elements necessary to establish the dacoity offence punishable under Section 395 of the IPC disclosed.

II) Is there evidence of any criminal intimidation that would be subject to Sections 504 IPC and 506 IPC?

III) Is there any reason to believe the accusations made in the FIR, given that it was filed in 2022 for an alleged offence that occurred in 2021 and that no information regarding the purported incident’s exact date or time was provided?

IV) Does any of the criteria established by the Supreme Court in the matter of State of Haryana v. Bhajan Lal, AIR 1992 SC 604 for the purpose of dismissing the criminal case apply to the present case in hand?

The Apex Court, vide Order dated 08.08.2023, made the following observations:

(1) Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

(2) Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

(3) The Supreme Court observed in the case of Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh 476, that three ingredients mentioned in Section 390 IPC (Robbery), must always be satisfied before theft can be said to have amounted to robbery.

“The words “for that end” in sec.390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances.”

(4) That the incident had taken place at the Appellant No. 2’s house. It is claimed that the Complainant and his brother visited the home of Appellant No. 2. The other co-Accused is likewise indicated to be there at that time. The Complainant hasn’t offered any solid or believable justifications for why he was carrying Rs. 2 lakh in his pocket.

(5) That it was a conflict in respect of the Complainant’s Land. According to the Complainant, he claims to be the legitimate owner of the Land, but the Accused was falsely claiming ownership in that regard. The Complainant and his brother allegedly visited the house of the Appellant No. 2 voluntarily in order to resolve this conflict.

(6) The Apex Court observed that to constitute an offence under Section 503 IPC has the following essentials:-

a) Threatening a person with any injury;

i) To his person, reputation or property; or

ii) To the person, or reputation of any one in whom that person is interested.

b) The threat must be with intent;

(i) To cause alarm to that person; or

 (ii) To cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or

(iii) To cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.

(7) That simple abuse, impoliteness, rudeness, or insolence may not qualify as an intentional insult under Section 504 of IPC, if they lack the necessary element i.e. of being likely to provoke the person who is being insulted to commit an offence.

(8) In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court held that no one commits an offence under Section 504, IPC if he merely uses abusive language against the Complainant.

“To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds.”

(9) In the present case, the Complaint was filed more than a year after the claimed occurrence without providing the date and time of the purported incident or any other logical or convincing justification for the delay caused in filing the Complaint against the Accused.

(10) The Investigating Agency might be able to determine the incident’s date, time, etc. during the course of the inquiry. The discovery of a few incriminating items may occasionally support the accusations made in the FIR. However, in the absence of all such evidence, relying only on the vague and generic claims made in the FIR, the Accused cannot be put to trial.

Conclusion

Thus, based on the aforesaid observations, the Supreme Court held that the Prosecution failed to establish the offence of assault, voluntarily causing hurt, etc against the Appellants-Accused, hence, allowing the criminal proceedings arising out of the FIR No. 224 of 2022 would amount to nothing but an abuse of the process of law. Thus, the Apex Court allowed the Appeal filed by the Accused and quashed the FIR and the criminal proceedings arising therefrom. As a result, the Impugned Order dated 17.10.2022 passed by the High Court was set aside.

Suneel Jaiswal

Associate

The Indian Lawyer