Abhishek Saxena vs The State Of Uttar Pradesh

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 2

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 3

(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 4

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 5

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 6

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.

7

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 8

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 9

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)