Madhya Pradesh High Court
A.B.Dubey vs Station House Officer on 12 January, 2024
M.Cr.C. No.9857/2016
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON’BLE SHRI JUSTICE RAJ MOHAN SINGH
ON THE 12TH OF JANUARY, 2024
M.Cr.C. No. 9857 OF 2016
BETWEEN:-
A.B. DUBEY, AGED ABOUT 47 YEARS, S/O SHRI LATE
SHRI G.S. DUBEY, R/O M.I.G. 138, ‘D’ SECTOR,
AYODHYA NAGAR, BHOPAL (MP)
….APPLICANT
(BY SHRI ANIL KHARE, SENIOR ADVOCATE WITH
SHRI SAHIL SHARMA – ADVOCATE)
AND
1. STATION HOUSE OFFICER, POLICE STATION,
HABIBGANJ, BHOPAL (MP)
2. SMT. LEENA KOSHTA, W/O SHRI AJAY
KOSHTA, PRESENTLY POSTED AS JAIL
SUPERINTENDENT, VIDISHA, DISTRICT
VIDISHA, R/O F-9/31, CHAR IMLI, BHOPAL (MP)
….RESPONDENTS
(BY SHRI SANJEEV SINGH PARIHAR – PANEL
LAWYER FOR RESPONDENT NO.1/STATE AND
M.Cr.C. No.9857/2016
2
SHRI S.N. VISHWAKARMA – ADVOCATE FOR
RESPONDENT NO. 2)
Reserved on : 09-01-2024
Pronounced on : 12-01-2024
ORDER
Vide this common order, both MCRC No.9857/2016 and
MCRC No.40945/2018 are being disposed of. Since both the
cases have arisen from common cause of action, therefore, facts
are being culled out from MCRC No. 9857/2016.
2. The applicant has preferred this petition under Section 482
Cr.P.C. for quashing of FIR No.514/2015 dated 04.08.2015
registered at Police Station Habibganj, District Bhopal and all the
subsequent proceedings undertaken pursuant thereto including
filing of report under Section 173 Cr.P.C. After filing of challan
before the Judicial Magistrate First Class, Bhopal, cognizance has
been taken by the Court by registering RT No.1974/2016 but
charges have not been framed so far as communicated by the
learned counsel for the applicant on verification from his client. A
perusal of the record would indicate that vide order dated
13.01.2017, further proceedings in RT No.1974/2016 pending
before the J.M.F.C., Bhopal were stayed till the next date of
hearing. The said interim relief remained in operation
subsequently also. Ultimately, the interim order was vacated vide
M.Cr.C. No.9857/2016
3
order dated 07.12.2023 and the trial Court was directed to
proceed with the matter.
With reference to the e-court services, learned counsel for
the applicant has informed the Court that charges have not been
framed so far and the case is listed before the trial Court for
20.01.2024. With the concurrence of the learned counsel for the
parties, this Court proceeded to take up the matter on merits.
3. The FIR in question has been registered by the respondent
No.1 for the offence under Sections 384, 354-D, 507/34 of Indian
Penal Code with the allegations that on 02.07.2015 and
03.07.2015, the complainant was present at her house. A
telephone call came from Moolchand Raikwar and he gave threat
to the complainant in connection of her forged caste certificate
and also demanded money from her. He asked her to meet him.
For the last one week, Moolchand Raikwar and A.B. Dubey,
Advocate, have been giving threats and are blackmailing the
complainant. The companion of Moolchand Raikwar has been
described by Moolchand Raikwar as Achal B. Dubey who is an
Advocate by profession. He also gave threats and black mailed
the complainant on phone of Moolchand Raikwar. Some of the
calls have been recorded by the complainant which she will
produce before the police. Moolchand Raikwar and his
companion have made many calls and compelled the complainant
to come to Vallabh Bhawan, Bhopal. On 04.07.2015, the
M.Cr.C. No.9857/2016
4
complainant went to Vallabh Bhawan in the evening. There,
Moolchand Raikwar himself came down after obtaining entry
pass and took her to his branch where Advocate Dubey was
already present. Both of them started indecent and filthy talks
with the complainant and started saying that the figure of the
complainant is good and she did not appear to be the mother of a
child. When the complainant objected to the same, then
Moolchand Raikwar and the Advocate Dubey started threatening
her and also started demanding money in connection to validity of
her caste certificate. The complainant got frightened and came
down from Vallabh Bhawan and thereafter, narrated the story to
Sameer Tiwari who had gone along with her. The complainant did
not report the matter due to her honor. Now, both the persons have
been making repeated calls and are compelling the complainant to
pay an amount of Rs.3,00,000/- (Rs. Three Lakhs). The
complainant told them that the department would be free to take
any action in the enquiry and they should not harass her
unnecessarily. On this, they gave threats of spoiling the service
prospects of the complainant. On the mobile of the complainant
bearing no.9425693615, many calls have been received from the
mobile numbers – 9575881276, 8435591995 and 88899511298.
They have demanded money from the complainant and also
threatened to send her to jail. The complainant is a Jail
Superintendent and the accused are professionals and shrewd
M.Cr.C. No.9857/2016
5
persons. The complainant got frightened as these persons, in
connivance with some antisocial elements, may commit some
scandalous act or even may attack the complainant. With these
allegations, the FIR came to be registered on 04.08.2015.
4. After investigation of the case, the challan has been
submitted to the Court for the offence under Sections 384, 354-D,
507/34 of Indian Penal Code against the applicant and co-accused
Moolchand Raikwar. The learned counsel for the applicant
submitted that even if the allegations are taken to be correct on
the face of the record, no offence is made out. Learned counsel
for the applicant submits that in order to constitute an offence
under Section 384 of IPC, there has to be some allegation that
pursuant to the demand made by the accused, any amount has
also been delivered to the accused by the complainant. In absence
of any such allegations, the offence of extortion in terms of
Section 383 IPC is not made out. Extortion has been defined
under Section 383 IPC which means –
“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”.
M.Cr.C. No.9857/2016
6
A perusal of the aforesaid, would indicate that unless
property is delivered to the accused persons pursuant to threat, no
offence of extortion is made out and the FIR for the offence under
Section 384 IPC could not have been registered by the Police. In
support of his contention, learned counsel for the applicant has
placed reliance upon (2014) 15 SCC 357 titled Isaac Isanga
Musumba and Others vs. State of Maharashtra and others. In
the aforesaid judgment, it has been clearly stated that delivery of
property or amount so demanded is the condition precedent for
constituting an offence under Section 384 IPC.
5. With reference to offence under Section 354-D IPC, learned
counsel for the applicant submits that the offence of stalking in
terms of Section 354-D(1) was introduced in the Indian Penal
Code vide Criminal Law (Amendment) Act, 2013 which was
passed by the Parliament based on the report of the committee on
amendments to Criminal Law pursuant to Nirbhaya’s Case. On
the basis of the report of the Committee, the Criminal Law
(Amendment) Ordinance, 2013 was promulgated wherein, the
offence of stalking was introduced by adding Section 354-D. For
ready reference, Section 354-D IPC is reproduced herein under :-
“354D. Stalking.–(1) Any man who–
(i) follows a woman and contacts, or attempts to
contact such woman to foster personal
M.Cr.C. No.9857/2016
7interaction repeatedly despite a clear indication
of disinterest by such woman; or
(ii) monitors the use by a woman of the internet,
email or any other form of electronic
communication, commits the offence of stalking:
Provided that such conduct shall not amount
to stalking if the man who pursued it proves
that–
(i) it was pursued for the purpose of preventing
or detecting crime and the man accused of
stalking had been entrusted with the
responsibility of prevention and detection of
crime by the State; or
(ii) it was pursued under any law or to comply
with any condition or requirement imposed by
any person under any law; or
(iii) in the particular circumstances such conduct
was reasonable and justified.
(2) Whoever commits the offence of stalking
shall be punished on first conviction with
imprisonment of either description for a term
which may extend to three years, and shall also
be liable to fine; and be punished on a second or
subsequent conviction, with imprisonment of
either description for a term which may extend to
five years, and shall also be liable to fine.”
The vital ingredient of the penal provision is “to foster
personal interaction despite a clear indication of disinterest by the
woman.” The offence of stalking is attracted only when a man
contacts or attempts to contact a woman to foster personal
interaction repeatedly despite a clear indication of disinterest
M.Cr.C. No.9857/2016
8
shown by the woman. The intention of legislature is to implicate
those who maintain behavioral pattern of sexual offences. Such
persons should have the intention to outrage the modesty of a
woman. The meaning of ‘Foster’ as per Oxford Advanced
Learners’ Dictionary is “to encourage the development or growth
of ideas or feelings” and as per Advanced Learner’s Dictionary of
Current English, the meaning of ‘Foster’ is “have in one’s heart or
mind.”
6. Section 354-D has been inserted in the Penal Provision as a
cognate offence of Section 354 which deals with assault or
criminal force to a woman with the intent to outrage her modesty.
The legislative intention was to bring in acts of men towards
women with sexual feelings under the fold of this penal provision.
In order to attract Section 354-D(1)(i) of IPC, the prosecution has
to establish that a man followed a woman and contacted or
attempted to contact her to foster personal interaction repeatedly
despite a clear indication of disinterest by such woman. The
Section takes in acts revealing sexual interest or lewd acts of man.
Any act whereby a man willfully contacts or attempts to contact a
woman in such a manner as to damage the virtue that attaches to a
female owing to her gender attracts the offence of stalking. In the
instant case, there is no such allegation that the applicant has
willfully contacted or attempted to contact the complainant to
M.Cr.C. No.9857/2016
9
foster his personal interaction repeatedly despite a clear indication
of disinterest by the complainant.
7. Learned counsel for the applicant, on the strength of the
judgment passed by the Kerala High Court in Crime
No.629/2019 titled Jayaprakash P.P. vs. Sheeba Revi and
Another contended the aforesaid preposition and submitted that
no offence under Section 354-D is made out against the applicant.
The ingredient of the offence in question are missing altogether.
The threat or abuse by the applicant, if any, towards the
complainant who is at loggerheads with the applicant would not
attract the offence of stalking as the basic issue which was
involved in the case was in respect of forged caste certificate
obtained by the complainant for which a complaint was made by
the co-accused before the competent authority. An enquiry was
conducted on the complaint of forged caste certificate of the
complainant while getting government service. Even W.P.
No.5142/2016 was filed by the applicant against the State and the
complainant which was disposed of vide order dated 04.05.2016
with a direction to the effect that in case, the applicant approaches
the respondent authorities along with the certified copy of the
order passed by the Court within a specified period, then the
authority concerned shall consider and decide the grievance of the
applicant in accordance with law as expeditiously as possible
preferably within a period of six months. Thereafter, against the
M.Cr.C. No.9857/2016
10
communication received by the complainant from the Secretary,
M.P. Scheduled Tribe Commission addressed to the Inspector
General of Police, Zone Jabalpur for causing an investigation in
respect of the complaint with regard to forged caste certificate,
the complainant unsuccessfully impugned the proceedings in W.P.
No.9430/2016, but the same was dismissed on 17-4-2017 on the
ground that there is a doubt whether any caste certificate has been
issued from the office of Tehsildar. Therefore, in order to
ascertain the genuineness of the caste certificate, it would be
within the domain of the investigating agency to find out the
truth. Once it is cleared that the certificate is genuine, then it will
be within the domain of the High Power Committee to cause an
enquiry as to whether a particular incumbent belongs to a class
which he or she claims. It will not be out of context to mention
that against the said order, the complainant has preferred the Writ
Appeal No.427/2017 in which the operation of the order issued by
M.P. State Scheduled Tribe Commission has been stayed vide
order dated 08.05.2017, but it has been made clear that the
investigation shall go on as per rule.
8. In view of the aforesaid facts, it is apparent that the parties
are at loggerheads with each other. The lodging of an FIR is
proved to be a result of misuse of penal provision. In the State of
Harayana and Others vs. Bhajan Lal and Others reported in
(1992) Supp. (1) SCC 335, the Hon’ble Apex Court has laid
M.Cr.C. No.9857/2016
11
down parameters and categories of cases where inherent power in
terms of Section 482 Cr.P.C. can be exercised either to prevent
abuse of the process of law/Court or to secure the ends of justice.
For ready reference, the following parameters have been laid
down :-
“(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code
except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an order
of a Magistrate as contemplated under Section
155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
M.Cr.C. No.9857/2016
12there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the
concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with view to spite him due to
private and personal grudge.”
9. As far as offence under Section 507 IPC is concerned,
learned counsel for the applicant submitted that the aforesaid
offence is not attracted in the present case. The offence in
question is based on an anonymous communication, i.e., whoever
commits the offence of criminal intimidation by an anonymous
communication, or having taken precaution to conceal the name
or abode of the person from whom the threat comes. There is no
such allegation in the FIR and in the report under Section 173
Cr.P.C. that the applicant is instrumental in giving criminal
intimidation by giving any anonymous communication to the
complainant.
M.Cr.C. No.9857/2016
13
10. On the basis of the aforesaid legal position, learned counsel
for the applicant submitted that the inherent power of the High
Court can be exercised even after filing of charge-sheet in order
to prevent abuse of the process of law and to secure ends of
justice. In support of his contention, learned counsel for the
applicant placed reliance upon (2019) 11 SCC 706 titled Anand
Kumar Mohatta and Another vs. State (NCT of Delhi),
Department of Home and Another. It is a settled principle by
now that once the charge-sheet is filed, the High Court can
entertain the petition under Section 482 Cr.P.C.. While holding
the legal preposition, the Hon’ble Apex Court has also placed
reliance upon (2011) 7 SCC 59 titled Joseph Salvaraj A vs.
State of Gujarat and Others, wherein it was held that the
inherent powers of the High Court can be invoked in order to
prevent abuse of the process of law and to secure the ends of
justice.
11. Per contra, learned counsel for the State duly assisted by
the learned counsel for the complainant vehemently opposed the
prayer on the ground that the offence under Section 354 IPC as a
whole is attracted. Learned counsel for the
respondent/complainant placed reliance upon Rupan Deol Bajaj
Another vs. Kanwar Pal Singh Gill Another reported in
1995 SCC (6) 194.
M.Cr.C. No.9857/2016
14
12. Having heard the learned counsel for the parties, I find that
the FIR in question was lodged on 04.08.2015 i.e., after coming
into force of Criminal Law (Amendment) Act, 2013 whereby, the
offence under Section 354-D was introduced. For the reasons
recorded herein above, this Court finds that lodging of FIR and
consequent report under Section 173 Cr.P.C. are the result of
abuse of process of law as the offence in question in terms of
Sections 384, 354-D and 507 IPC are not attracted as the
ingredients of the aforesaid offences are not satisfied. As a result
of the aforesaid, the powers under Section 482 Cr.P.C. can be
invoked by this Court in order to prevent abuse of process of law
and also to secure ends of justice.
13. In view of the above, the present petition is accepted. The
impugned FIR along with entire subsequent proceedings arising
therefrom is hereby quashed. Normal consequence to follow.
(RAJ MOHAN SINGH)
Judge
12/01/2024
Priya.P.
Digitally signed by PRIYANKA PITHAWE
DN: cIN, oHIGH COURT OF MADHYA
PRIYANKA
PRADESH, ouJABALPUR,
2.5.4.20d37a81191de6acde444a6886a4
7abb98148aa9e495bf4864a0b98b726b9
f1cae, postalCode482001, stMadhya
PITHAWE
Pradesh,
serialNumber74E4E39D1C040FC71204
B21F23BFEF429FDE37D003F974C3A62B
E699711217BE, cnPRIYANKA PITHAWE
Date: 2024.01.12 16:14:16 +05’30’