ABHISHEK SAXENAversusTHE STATE OF UTTAR PRADESH & ANR

               [2023] 16 S.C.R. 1126 : 2023 INSC 1088



                           CASE DETAILS

                        ABHISHEK SAXENA
                                   v.
            THE STATE OF UTTAR PRADESH & ANR.
                  (Criminal Appeal No.3628 of 2023)
                        NOVEMBER 28, 2023
        [C.T. RAVIKUMAR AND SANJAY KUMAR, JJ.]
                            HEADNOTES
     Issue for consideration: Whether the chargesheet submitted
showed prima facie case u/ss. 323, 384 and 406, IPC for voluntarily
causing hurt, for extortion and for criminal breach of trust; Whether
the High Court has fallen in error in not invoking the powers u/s. 482,
Cr.P.C. to quash the proceedings qua the appellant.
     Penal Code, 1860 – ss.323, 384 and 406 – Code of Criminal
Procedure, 1973 – s.482 – An FIR was registered against the
appellant, his parents and relatives on 04.09.2016 alleging
commission of offences u/ss. 323, 363, 384 and 406 of the IPC –
Subsequently, charge sheet was filed for offences u/ss. 323, 384 and
406 of the IPC – An application u/s. 482 CrPC was filed seeking
quashment of the FIR – The High Court declined to exercise the
power u/s. 482 CrPC and consequently dismissed the petition qua
the appellant – Propriety:
     Held: The unrefuted position of facts reveal that the appellant had
already filed a petition for dissolution of his marriage with the second
respondent-complainant and also application u/ss. 7, 10 and 17 of the
Guardians & Wards Act, 1890 for declaring him as the guardian of the
minor daughter on 16.05.2016 – Whereas, the FIR in question was
filed on 04.09.2016 – On perusal of materials on record, the necessary
ingredients to attract the offences u/ss. 323, 384 and 406 of the IPC qua
the appellant were not found – As relates the allegation of commission of
offence u/s. 323, IPC besides the bald statement that when complainant
asked appellants-accused about her daughter, they had beaten her, there
                                  1126
  ABHISHEK SAXENA v. THE STATE OF UTTAR PRADESH                       1127
                      & ANR.

is no material whatsoever to support the allegation causation of hurt
is available on record much less voluntary causation of hurt – There
is no material on record that after the incident she went to a doctor or
underwent any kind of treatment – There is no statement that injury report
was prepared – The basic ingredients to constitute an offence u/s. 323,
IPC is not satisfied – As relates the alleged commission of offence u/s.
384, IPC, the twin ingredients that (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, are
not satisfied – Considering the accusation of commission of offence
u/s. 406, IPC, the essential ingredients to constitute an offence u/s. 406,
IPC are: (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, are also not satisfied – The High Court has
clearly fallen in error in not invoking the powers u/s. 482, CrPC to quash
the proceedings qua the appellant. [Paras 5, 6, 9, 10, 11, 12]
      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.3628 of 2023.
     From the Judgment and Order dated 23.10.2019 of the High Court
of Judicature at Allahabad in A482 No.471 of 2018.
     Appearances:
      Vinod Prasad, Sr. Adv., Ajay Kumar Srivastava, Dhirendra Kumar,
Bijender Singh, Devvrat Rana, Pawan Tyagi, Mrs. Sanno Kumar, Ms.
Jyoti Tiwary, Advs. for the Appellant.
     Divyesh Pratap Singh, Rajat Singh, Chandra Shekhar Suman,
Sarthak Chandra, Arun Pratap Singh Rajawat, Advs. for the Respondent.
1128          SUPREME COURT REPORTS                       [2023] 16 S.C.R.



        JUDGMENT / ORDER OF THE SUPREME COURT

                                 ORDER

       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 an application under
Section 482 CrPC seeking quashment of the FIR and the consequently filed
chargesheet and the summoning order dated 19.09.2017 issued thereafter.
As per the 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
  ABHISHEK SAXENA v. THE STATE OF UTTAR PRADESH                         1129
                      & ANR.

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 (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 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
1130         SUPREME COURT REPORTS                       [2023] 16 S.C.R.


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 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 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:
  ABHISHEK SAXENA v. THE STATE OF UTTAR PRADESH                           1131
                      & ANR.

     (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.
     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 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.
1132           SUPREME COURT REPORTS                         [2023] 16 S.C.R.


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.


Headnotes prepared by:                                           Appeal allowed.
Ankit Gyan