First and foremost, it must be said that the Supreme Court just recently on April 26, 2019 has in a notable judgment titled Vikram Johar v The State of Uttar Pradesh & Anr in Criminal Appeal No. 759 of 2019 (arising out of SLP (Crl.) No. 4820/2017) has sought to send a loud and clear message that mere act of abusing a person in filthy language does not satisfy the ingredients of the offence of criminal intimidation under Section 506 of the IPC. Very rightly so! This latest judgment authored by Justice Ashok Bhushan for himself and Justice KM Joseph came after hearing an appeal filed by one Vikram Johar against the High Court and the Trial Court orders refusing to discharge him from a criminal case.
At the outset, it is pointed out in para 2 of this judgment that, “This appeal has been filed challenging the judgment of the Allahabad High Court dated 06.02.2017 by which judgment, the criminal revision filed by the appellant was dismissed. The criminal revision was filed by the appellant challenging the order dated 29.11.2016 passed by the Additional Chief Judicial Magistrate rejecting his discharge application moved under Section 239 read with Section 245 Cr.P.C. in a complaint case No. 483 of 2013 under Section 504 and 506 of IPC.”
In hindsight, it would be useful to now dwell on the brief facts of this case. Para 3 states that, “The brief facts of the case, which need to be noted for deciding this appeal are: –
3.1 The respondent No. 2 (hereinafter referred to as “complainant”), was a partner of M/s Ram Company engaged in business of wood processing and sale. The company had its premises at Kosikala, 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, which reached on the spot and fire could be controlled after several hours. The cause of fire was shown as electric short circuit in electric cable. Fire caused damages of stocks, plant and machinery and building. M/s. Ram Company had taken a Standard Fire & Special Perils Policy from M/s. United India Insurance Co. Ltd. M/s. Ram Company had submitted insurance claim on 20.12.2010. Total claim raised by the company was Rs. 3,62,45,114/-. The United India Insurance Co. Ltd. (hereinafter referred to as “insurance company”) appointed the appellant M/s. Protocol Surveyor and Engineers Private Limited, who is a certified surveyor by Insurance Regulatory and Development Authority. The appellant being Director of M/s. Protocol Surveyor and Engineers Private Limited 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 a survey report. Joint Inspection note was prepared on 04.04.2011, for which various documents were asked from the company. After various correspondences, the appellant submitted a final survey report dated 23.09.2011. M/s. Ram Company wrote letter dated 15.07.2011 and 22.07.2011 to the surveyor, which was duly replied on 23.07.2011 by the surveyor. M/s. Ram Company has also written to insurance company, which was replied by insurance company on 08.08.2011 informing M/s. Ram Company that surveyors have been asked to submit their final report at the earliest.
3.4 On 11.09.2011, the M/s Ram company submitted a letter to insurance company requesting to make payment of policy amount of Rs. 285.60 Lacs. In the said letter, some complaints were also made against the surveyor. Again on 19.09.2011, a letter was sent by M/s. Ram Company to the insurance company, whose allegations were made against the surveyor. The surveyor, i.e., the appellant submitted final report on 23.09.2011 with regard to claim of M/s. Ram Company, in detail noticing all aspects of the matter. In the Survey Report in the last paragraph, following was stated:-
“15) Underwriters Liability
In view of the above, it stands established that
(a) The insured has misrepresented their claim of building.
(b) The insured has misrepresented their claim of Plant & Machinery.
(c) The insured had made false declaration to inflate the stock quantity.
(d) The insured had made false declaration on the stock value declaration.
This policy shall be voidable in the event of misrepresentation, mis description or non disclosure of any material particular.
If the claim be in any respect fraudulent, or if any false declaration be made or used in support thereof if any fraudulent means or deices are used by the insured or anyone acting on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the willful act, or with the connivance of the insured, all benefits under this policy shall be forfeited.
It is clear that the insured’s Misrepresentation & False declaration have breached both the above stated policy conditions.
In view of above, that the subject claim is not admissible under the captioned policy of insurance.
This report is being submitted without prejudice and is subject to the terms and conditions of the policy of insurance.
Protocol Surveyors & Engineers Pvt. Ltd.”
3.5 On 14.11.2011, respondent No. 2, i.e., complainant filed an application under Section 156(3) Cr.P.C. alleging offences under Sections 383, 384, 471, 504 and 506 I.P.C. In the complaint, allegation was made against the appellant that he alongwith two or three other unknown persons, one of whom was holding a revolver, came to the complainant’s house on 02.10.2011 at 7.00 PM and abused him in filthy language and was about to assault him, when some neighbours arrived there, the appellant and two or three other unknown persons fled the spot on their vehicle. On the above application dated 14.11.2011, on the order of the Magistrate, first information report was lodged being F.I.R. No. 367 of 2011 under Sections 383, 384, 471, 504 and 506 I.P.C. registered on 24.11.2011. Insurance company by letter dated 12.12.2011 repudiated the claim of M/s Ram Company.
3.6 I.O. conducted the investigation calling the appellant also and submitted a closure report. In the closure report, I.O. also had stated that as per the call details and location of Vikram Singh’s mobile (appellant), there was no roaming of his mobile from 1st October to 4th October and his location was within the NCR area. After recording the statements of several persons, the I.O. submitted final form, closure report. Against this report, a protest petition was filed by the complainant before the Judicial Magistrate, who by order dated 18.05.2012 allowed the protest petition and directed for further investigation in the Crime No. 448 of 2011. Further investigation was also conducted by another I.O., who again submitted a final report opining that no offence has been committed. Again, a protest petition was filed. The Judicial Magistrate by order dated 21.12.2012 held that no further investigation is required and it shall be justified to try and dispose of the case as a complaint case. Complainant’s statement under Section 200 Cr.P.C was recorded. 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 the appellant under Sections 504 and 506 I.P.C. Against the order dated 07.02.2014 an application under Section 482 Cr.P.C was filed by the appellant in the Allahabad High Court, which application was disposed of by the High Court by order dated 30.07.2014. High Court while disposing of the application under Section 482 Cr.P.C. observed that in case, if discharge application is moved by the applicant within 30 days, it is expected that the same shall be considered and decided by a reasoned and speaking order, and till disposal of the application on merit, no coercive action shall be taken against the appellant.
3.8 An application was filed by the applicant under Section 239 read with Section 245 Cr.P.C before the Court of Judicial Magistrate praying that appellant be discharged. In the application under Sections 239 and 245, details of claim, various reports and consideration by insurance company was mentioned. Additional Chief Judicial Magistrate vide its order dated 29.11.2016 rejected the application for discharge against which Criminal Revision was filed in the High Court, which has been dismissed on 06.02.2017. Aggrieved, by above order, this appeal has been filed.”
Having said this, the Bench then also maintained in para 9 that, “We have noticed the facts and sequences of events, which led to filing of the application under Section 156(3) Cr.P.C. by the complainant against the appellant. We, in the present case, are not concerned on the merits of the claim of the complainant pertaining to fire incident dated 18.12.2010. Our consideration has to confine only to the question as to whether the appellant has made out a case for discharge under Sections 504 and 506 I.P.C.”
While referring to Fiona Shrikhande Vs. State of Maharashtra & Another, (2013) 14 SCC 44, it was held very rightly and aptly that, “The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No. 13 of the judgment of this Court in Fiona Shrikhande (supra).”
While referring to Manik Taneja and Another Vs. State of Karnataka and Another (2015) 7 SCC 423, it is then held in para 25 that, “In the above case, allegation was that appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506.”
Going ahead, it is then explicitly envisaged in para 26 that, “Now, we revert back to the allegations in the complainant against the appellant. The allegation is that appellant with two or three other unknown persons, one of whom was holding a revolver, came to the complainant’s house and abused him in filthy language and attempted to assault him in filthy language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No. 13 of the judgment of this Court in Fiona Shrikhande (supra).”
More importantly, it is then held in para 27 that, “Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are the ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edition with regard 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 or property 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 not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.”
A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.”
Most importantly, it is then held in para 28 that, “On the principles as enumerated by this Court in Fiona Shrikhande (supra) and Manik Taneja (supra), we are satisfied that ingredients of Sections 504 and 506 are not made out from the complaint filed by the complainant. When the complaint filed under Section 156(3) Cr.P.C., which has been treated as a complaint case, does not contain ingredients of Sections 504 and 506, we are of the view that Courts below committed error in rejecting the application of discharge filed by the appellant. In the facts of the present case, we are of the view that appellant was entitled to be discharged for the offence under Sections 504 and 506.”
Lastly, it is then held in para 29 that, “Thus, in result, the appeal is allowed. The judgment of the High Court dated 06.02.2017 as well as the order of Chief Judicial Magistrate dated 29.11.2016 are set aside and the appellant stands discharged from the offence under Sections 504 and 506.”
In conclusion, it can rightly be said that it is a balanced decision by the Apex Court which took into account all the factors before pronouncing decision on it. The Bench thus discharged Vikram Johar as no case for trial was made out. It is true that Vikram had used filthy language but that by itself was not considered sufficient by the two Judge Bench of Apex Court comprising of Justice Ashok Bhushan and Justice KM Joseph to attract the offence of criminal intimidation under Section 506 of the IPC. Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
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