Chh HC | When prima facie ingredients of S. 383 IPC is not made out, then the offence under S. 388 IPC cannot be made out

Chhattisgarh High Court

Chhattisgarh High Court: Narendra Kumar Vyas J. allowed the petition and quashed the FIR and the criminal proceedings against the petitioner.

The factual matrix of the case is such that the Government of Chhattisgarh enacted the Shakambhari (Nal-Jal) Scheme for benefit of agriculturists by granting subsidy. The major authorities along with respondent 5/complainant Kuleshwar Chandrakar and Roshan Chandrakar, Proprietor of Shri Ram Bore-wells have committed gross embezzlement at the time of granting subsidy to the concerned agriculturists, therefore, the petitioner made a complaint before the Collector, Dhamtari for registration of FIR against the corrupt employee/officers. But the respondent did not take any action against the corrupt persons including the respondent 5. Being aggrieved, the petitioner filed complaint under Section 156(3) Criminal procedure Code i.e. Cr.P.C before District and Sessions Court, Dhamtari for registration of offence under Prevention of Corruption Act. On 9-10-2015, the complainant Kuleshwar Chandrakar lodged FIR against the petitioner contending that the petitioner has demanded Rs 25, 00,000/- by way of extortion. Police has registered the FIR without conducting any preliminary enquiry. The petitioner, who is an Advocate by profession, filed the present writ petition (cr.) challenging the registration of First Information Report against him under Sections 384 and 388 of Penal Code, 1860 IPC on the basis of complaint filed by respondent 5 Kuleshwar Chandrakar.

The Court observed that on perusal of sections mentioned in the FIR it is amply clear that what is necessary for constituting an offence of ‘extortion’ is that the prosecution must prove that on account of being put in fear of injury; the victim was voluntarily delivered any particular property to the man putting him into fear. If there was no delivery of property, then the most important ingredient for constituting the offence of ‘extortion’ would not be available. Further, if a person voluntarily delivers any property without there being any fear of injury, an offence of ‘extortion’ cannot be said to have been committed.

The Court relied on judgment Sudha Tripathi v. State of Madhya Pradesh in MCRC No 1187 of 2019 decided on 2-5- 2019 and observed that it is apparent that the alleged offence under Section 384 of IPC has been quashed on the ground that no valuable assets have been delivered because of extortion, threaten, pressure created by the accused. In the present case also respondent 5 has not delivered any valuable assets to the petitioner, therefore, the judgment referred to by respondent No.5 also support the contention of the petitioner and in that case also Madhya Pradesh High Court held that offence under Section 384 of IPC is not made out.

The Court observed that when prima facie provisions of Section 383 of IPC is not made out, then the offence under Section 388 of IPC cannot be made out, because unless and until the ingredient of extortion is established, then only the alleged offence, prima facie, is said to have been committed by the petitioner. Since the ingredients of Sections 383 of IPC are not made out, the ingredient of Section 388 of IPC cannot be, prima facie, established; therefore, registration of FIR, prima facie, is nothing, but an abuse of process of law.

The Court thus held “from perusal of FIR, prima facie, no case is made out against the petitioner and criminal proceedings is manifestly attended against the petitioner with malafide, therefore, initiation of criminal proceeding is nothing, but an abuse of process of law.”

[Shatrughan Singh Sahu v. State of Chhattisgarh, WPCR No. 133 of 2017, decided on 27-074-2021]


Arunima Bose, Editorial Assistant has reported this brief.


 Appearances

For Petitioner: Mr. Roop Naik and Mr. Sanjeev Sahu,

For Respondents 1 to 4: Mr. Gurudev I Sharan

For Respondent 5: Mr. Manoj Paranjpe

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