Full Judgment Text
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REPORTABLE
2023 INSC 1088
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3628 OF 2023
(Arising out of SLP(Crl.) No. 1431/2020)
ABHISHEK SAXENA Appellant(s)
VERSUS
THE STATE OF UTTAR PRADESH & ANR. Respondent(s)
O R D E R
Leave granted.
1. This 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.
2. FIR 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
Signature Not Verified
an application under Section 482 CrPC seeking quashment of the
Digitally signed by
NIRMALA NEGI
Date: 2024.01.03
15:50:34 IST
Reason:
FIR and the consequently filed chargesheet and the summoning
order dated 19.09.2017 issued thereafter. As per the
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impugned order, the High Court declined to exercise the power
under Section 482 CrPC and consequently dismissed the petition
qua the appellant.
3. Heard 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.
4. As 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.
5. As 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
father after about 15 days from 12.06.2016 from the house of
second respondent’s father in Bareilly, the second respondent
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(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.
6. Further 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, Mama and Mami,
are also residing in the house where the daughter ‘Anwesha
Saxena’ ordinarily resides. It is months thereafter that the
second respondent filed the complaint causing registration of
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FIR No. 839/2016 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 by the complainant i.e., the second respondent
herein. In the written complaint by the second respondent-
complainant, the typed copy of which is produced 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 flat 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
appellant, his parents and relatives cause disappearance of
her daughter and on being asked about her they had beaten her
up and snatched golden jewellery and her own savings of Rs.
50,000/-.
7. As the High Court did not endeavour to consider whether
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the chargesheet submitted showed prima facie case under
Sections 323, 384 and 406, IPC for voluntarily causing hurt,
for extortion and for criminal breach of trust, we think it
inevitable to undertake such a consideration 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 alleged
causation of hurt. Though the first respondent filed a
counter affidavit nothing is stated / produced in regard to
the said alleged offence.
8. Bearing in mind the aforesaid materials on record we have
carefully perused them and the chargesheet to ascertain
whether they disclose the ingredients to attract the offences
under Sections 323, 384 and 406, IPC qua the appellant.
9. As noted earlier, except the statement that ‘they beat up
me’ by the complainant no material whatsoever is available on
record in regard to the commission of the said offence. The
incident allegedly occurred on 12.06.2016. In the recorded
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statement of the second respondent-complainant or in the
counter affidavit filed by the 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 there
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.
10. As 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
chargesheet to constitute the said offence it cannot be said a
prima facie case of commission of offence under Section 384 is
made out therein.
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11. Now, 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
in 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 case, the charge of commission of the offence
thereunder also cannot be attracted.
12. In the circumstances obtained as above, we are of the
considered view that no useful purpose is likely to be served
by allowing criminal prosecution against the appellant to
continue based on the aforesaid chargesheet as ingredients of
all the aforementioned offences are wanting in this case. We
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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.
13. We 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 aside. 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.
.................J.
(C.T. RAVIKUMAR)
.................J.
(SANJAY KUMAR)
NEW DELHI;
NOVEMBER 28, 2023
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ITEM NO.40 COURT NO.14 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 1431/2020
(Arising out of impugned final judgment and order dated 23-10-2019
in A482 No. 471/2018 passed by the High Court Of Judicature At
Allahabad)
ABHISHEK SAXENA Petitioner(s)
VERSUS
THE STATE OF UTTAR PRADESH & ANR. Respondent(s)
IA No. 28647/2020 - EXEMPTION FROM FILING O.T.)
Date : 28-11-2023 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE C.T. RAVIKUMAR
HON'BLE MR. JUSTICE SANJAY KUMAR
For Petitioner(s) Mr. Vinod Prasad, Sr. Adv.
Mr. Ajay Kumar Srivastava, AOR
Mr. Dhirendra Kumar, Adv.
Mr. Bijender Singh, Adv.
Mr. Devvrat Rana, Adv.
Mr. Pawan Tyagi, Adv.
Mrs. Sanno Kumar, Adv.
Ms. Jyoti Tiwary, Adv.
For Respondent(s) Mr. Divyesh Pratap Singh, Adv.
Mr. Rajat Singh, AOR
Mr. Chandra Shekhar Suman, Adv.
Mr. Sarthak Chandra, Adv.
Mr. Arun Pratap Singh Rajawat, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
Appeal is allowed in terms of the signed reportable order, which
is placed on the file.
Pending application(s), if any, stands disposed of.
(DR. NAVEEN RAWAL) (MATHEW ABRAHAM)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)