# Ms. Kritika Kaushik @ Hanu & Anr v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 7 ILRA 460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-19
- **Case number:** Application U/S 482. No. 1861 of 2024
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ms-kritika-kaushik-hanu-anr-v-state-of-u-p-anr-opp-parties-52285
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 34, 108, 328, 344, 347, 384, 406,
500, 506 & 511 - Code of Criminal
Procedure, 1973 - Sections 200 & 202 -
Quashing of entire criminal proceedings,
summoning order - Challenged - Held, in
order to prove offence of extortion there
must be delivery of amount demanded -
As clearly reflected from statements of
Complainant and witnesses the alleged
7 All. Ms. Kritika Kaushik @ Hanu & Anr. Vs. State of U.P. & Anr.
461
demand
of
Rs.
1
crore
was
never
materialized as it was never handed over
by Complaint to applicants - As such,
offence u/s 383 IPC punishable u/s 384
IPC is not made out - In the statements of
Complainant and witnesses the nature of
threat is not specified that whether it will
fall within the parameters that person to
whom insult was made was likely to
commit an act which would provoke
breach of peace - As such, ingredients of
Section 504 IPC are also not made out -
Applicant-1 has already initiated criminal
proceedings against her husband and inlaws, therefore, it is a case wherein
opposite parties have initiated present
proceedings
for
wreaking
vengeance.
(Para 2, 4, 8, 10, 13)

Application Allowed. (E-13)

List of Cases cited:

## Text

460 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfaction in a cryptic manner...."

(Emphasis supplied)

14. In above background and taking
note that Complainant has already filed a
civil suit for cancellation of Will, at this
stage there is no material before Trial Court
as well as no reason has been assigned that
there are sufficient ground to proceed
against
applicants
to
summon under
Section 420 IPC. The ingredients of
Section 420 IPC that applicants have
cheated and thereby dishonestly induces the
person deceived to deliver any property, are
not made out as at this stage it could not be
concluded that deceased has signed Will
under force. In this regard I have also
perused photocopy of Will wherein not
only thumb impression of deceased was
marked but he has also put his signatures.

15. With regard to summon under
Section 304 IPC, Trial Court has noted
that Will was executed on 27.01.2017
and executor was admitted in Hospital
on same day and he expired on next
date. Trial Court considered the said
circumstances suspicious and sufficient
to summon applicants. In this regard
Trial Court has taken note of statement
of
Complainant
and
his
mother.
However, without any post mortem
report or without any statement of
Doctor before Trial Court only on basis
that executor of Will, a person aged
about 80 years, died on very next day as
well as without any medical report that
he was a person of unsound mind, I do
not find that there are sufficient ground
to proceed against applicants to summon
them under Section 304 IPC also.
Accordingly, ingredients of Section 304
IPC are also not made out. Court has
taken
note
of
Lalankumar
Singh
(supra) and Sachin Garg (supra).

16. In in view of above and taking
note of A.M. Mohan (supra), application
is allowed. Impugned summoning order
dated 02.12.2023 passed by Chief Judicial
Magistrate, Firozabad as well as entire
proceedings of Complaint Case No. 22712
of 2022 (Dev Kumar vs. Santosh Kumar
Sharma and others), under Section 304, 420
IPC, Police Station Shikohabad, District
Firozabad, are hereby quashed.

17. Registrar (Compliance) to take
steps.
----------
(2024) 7 ILRA 460
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.07.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482. No. 1861 of 2024

Ms. Kritika Kaushik @ Hanu & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Ravi Anand Agarwal, Shreya Gupta

Counsel for the Opposite Parties:
Aravind Kumar Tripathi, Deepak Kumar
Yadav, G.A., Laxmi Narayan Mishra, Rajrshi
Gupta, Rizwan Ahamad

Criminal Law - Indian Penal Code, 1860 -
Sections 34, 108, 328, 344, 347, 384, 406,
500, 506 & 511 - Code of Criminal
Procedure, 1973 - Sections 200 & 202 -
Quashing of entire criminal proceedings,
summoning order - Challenged - Held, in
order to prove offence of extortion there
must be delivery of amount demanded -
As clearly reflected from statements of
Complainant and witnesses the alleged
7 All. Ms. Kritika Kaushik @ Hanu & Anr. Vs. State of U.P. & Anr.
461
demand
of
Rs.
1
crore
was
never
materialized as it was never handed over
by Complaint to applicants - As such,
offence u/s 383 IPC punishable u/s 384
IPC is not made out - In the statements of
Complainant and witnesses the nature of
threat is not specified that whether it will
fall within the parameters that person to
whom insult was made was likely to
commit an act which would provoke
breach of peace - As such, ingredients of
Section 504 IPC are also not made out -
Applicant-1 has already initiated criminal
proceedings against her husband and inlaws, therefore, it is a case wherein
opposite parties have initiated present
proceedings
for
wreaking
vengeance.
(Para 2, 4, 8, 10, 13)

Application Allowed. (E-13)

List of Cases cited:

1. Sanjeev Rawat @ Teetu & anr. Vs State of
U.P.
&
anr.,
Neutral
Citation
No.
2023:AHC:179057

2. M/s Eicher Tractor Ltd. & ors. Vs Harihar
Singh & anr., 2008(16) SCC 763

3. Sanjay Gupta alias Sanju Mohan Vs St. of U.P.
& anr., Neutral Citation No. 2024:AHC:105492

4. Dhananjay @ Dhandnjay Kumar Singh Vs St.
of Bihar & ors., (2007)14 SCC 768

5. Salib @ Shalu @ Salim Vs St. of U.P. & ors.,
2023 INSC 687

6. Mohammad Wajid & anr. Vs St. of U.P. & ors.,
2023 INSC 683

7. Vijay Kumar Ghai & ors. Vs St. of W. B. & ors.,
(2022) 7 SCC 124

8. St. of Har. v. Bhajan Lal, 1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426
(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard Ms. Shreya Gupta, learned
counsel for applicants, Sri Mithilesh
Kumar, learned AGA for State and Sri
Rizwan
Ahamad,
Advocate
for
Complainant.

2. The present application under
Section 482 Cr.P.C. has been filed for
quashing
of
entire
proceedings
of
Complaint Case No. 3921 of 2023, under
Sections 34, 108, 328, 344, 347, 384, 406,
500, 506, 511 IPC and summoning order
dated 18.12.2023 passed by Additional
Civil Judge (Senior Division)/ Additional
Chief Judicial Magistrate, Court No. 4,
Ghaziabad, whereby Applicant-1, Kritika
Kaushik has been summoned under Section
406 IPC and Applicant-2, Naresh Kumar
Kaushik
has
been
summoned
under
Sections 504, 384 IPC.

3. In the present case Applicant-1 is
daughter-in-law of Opposite Party No. 2
and Applicant-2 is father of Applicant-1.

4. Learned counsel for applicants
submits that even contents of complaint
and statements recorded under Sections 200
and 202 Cr.P.C. considered to be true, still
ingredients of Sections 384, 504, 406 IPC
are not made out and she refers relevant
part
of
impugned
order,
which
is
reproduced hereinafter:

"पत्रािली का अिलोकन ककया।

पत्रािली के अिलोकन से विददर्
है कक पररिादी ने अपने बयान अिंर्र्ार्
िारा-200 दिं०प्र०सिं० में किन ककया है कक
ददनािंक 06-11-2021 को पररिादी की पुत्रििू
कृनर्का पररिादी के पररिार के आभूषण
अपने मायके ददखाने भैय्या दूि के त्क्योहार
462 INDIAN LAW REPORTS ALLAHABAD SERIES
पर ले र्यी िी और िब िापस आयी र्ो
िेिर मािंर्ने पर उसके द्िारा कहा र्या कक
यह िेिरार् मायके भूल आयी है। ददनािंक
11-11-2021 को पररिादी की पुत्रििू के
वपर्ा नरेश कौसशक आये और पररिादी की
पुत्रििू, और उसके पोर्े को अपने साि ले
र्ये। उत्तके बाद ददनािंक 24-11- 2021 को
नरेश कौसशक पररिादी की पुत्रििू कृनर्का
ि उसके दोथर् विकास शमाा पररिादी के
घर आये और पररिादी की पुत्रििू अपने
और अपने बेटे का सामान साि में ले
र्यी। िार्े समय नरेश कौसशक ने एक
भारी बैर् से पररिादी की पत्क्नी रेखा शमाा
को िक्का ददया स्िससे उसकी हड्डडयों में
िोट लर् र्यी। ददनािंक 03-07- 2022 को
नरेश कौसशक अपने दोथर् विकास शमाा की
पत्क्नी और रािू शमाा के साि पररिादी के
घर आये और पररिादी से बार्िीर् की।
उसके बाद अिानक मीदटिंर् छोडकर उसके
घर के पडोवत्तयों के दरिािे खटखटाने लर्े
और पररिादी ि उसके घर िालों का नाम
लेकर र्िंदी र्िंदी र्ासलयािं देने लर्े। र्ब
नरेश कौसशक से कहा कक आप बैठकर
बार्िीर् से कोई समझौर्ा क्यों नहीिं कर
लेर्े। इस पर नरेश कौसशक ने एक करोड
रूपये समझौर्े में मािंर्े और र्भी िेिरार्
िापस करने की बार् की। पररिादी का यह
भी किन है कक माननीय उब न्द्यायालय
ददल्ली का आदेश है कक पररिादी की बहू
कृनर्का कौसशक अपने बच्िे को अमेररका
में रखेर्ी ि अपने पनर् से समलने देर्ी।
पररिादी ने अपने पररिाद के किनों में
माननीय उब न्द्यायालय ददल्ली के आदेश
की प्रनर् दाखखल की है। उक्र् के सम्बन्द्ि
में िािंि आख्या अिंर्र्ार् िारा-202 दिं०प्र०सिं०
न्द्यायालय द्िारा सम्बस्न्द्िर् िाने से मािंर्ी
र्यी है।

उक्र् घटना के सम्बन्द्ि में िािंि
आख्या अिंर्र्ार् िारा-202 दिं०प्र०सिं० में
िािंिकर्ाा द्िारा आख्या दी र्यी है कक
विपक्षी नरेश कौसशक से बार्िीर् करने पर
उन्द्होंने कोई भी सहयोर् नहीिं ककया, िबकक
पररिादी द्िारा अपने बयानों का िािंि
आख्या में किन ककया र्या है। उक्र्
पुसलस िािंि आख्या पररिादी ि उसकी ओर
से परीक्षक्षर् साक्षीर्ण के साक्ष्य के आिार
पर प्रिम दृष्टया विपक्षी नरेश कुमार
कौसशक को पररिादी ि उसकी पत्क्नी को
र्ाली-र्लौि करने ि 1 करोड रूपये
समझौर्े में मािंर्ने पर अिंर्र्ार् िारा-
504,384 भा०दिं०सिं० ि कृनर्का कौसशक को
पररिादी की पत्क्नी के िेिर ले िाने ि
िापस न करने के सम्बन्द्ि में अिंर्र्ार्
िारा-406 भा०दिं० सिं० में र्लब ककये िाने
योग्य है।
आदेश

असभयुक्र्र्ण
नरेश
कुमार
कौसशक
को
अिंर्र्ार्
िारा
504,384
भा०दिं०सिं० ि कृनर्का कौसशक को अिंर्र्ार्
िारा 406 भा०दिं०सिं० में र्लब ककया िार्ा
है। पररिादी िारा 204 (2) दिंड प्रकक्रया
सिंदहर्ा में िखणार् साक्षी सूिी की पैरिी
7 All. Ms. Kritika Kaushik @ Hanu & Anr. Vs. State of U.P. & Anr.
463
अविलिंब करें। र्त्क्पचिार् असभयुकर्ण को
सम्मन ददनािंक-49.01.2024 को पेश हो।"

5. Learned counsel further submits
that
date
mentioned
in
complaint,
statements recorded under Sections 200 and
202
Cr.P.C.
as
well
as
in
Police
investigation report is different as such
even ingredients under Section 406 IPC is
not made out. In support of her submissions
she placed reliance on a Coordinate Bench
judgment of this Court in Sanjeev Rawat
alias Teetu and another vs. State of U.P.
and another, Neutral Citation No.
2023:AHC:179057 and a judgment passed
by Supreme Court in M/s Eicher Tractor
Ltd. and others vs. Harihar Singh and
another, 2008(16) SCC 763.

6. Per contra, learned AGA as well as
learned counsel appearing for Complainant
have supported the impugned order and
submit that all the allegations are supported
by statements recorded during proceeding
and there are reasons assigned by Trial
Court concerned that there are sufficient
ground to proceed.

7. In order to appreciate rival
submissions the Court takes note of a
recent judgment passed by this Court in
Sanjay Gupta alias Sanju Mohan vs.
State of U.P. and another, Neutral
Citation No. 2024:AHC:105492 wherein
ingredients to commit offence under
Section 384 IPC were discussed in detail
and Court has also placed reliance on two
judgments passed by Supreme Court in
Dhananjay @ Dhandnjay Kumar Singh
Vs. State of Bihar and others, (2007)14
SCC 768 and Salib @ Shalu @ Salim
vs. State of U.P. and others, 2023 INSC
687. Relevant paragraphs of Sanjay
Gupta alias Sanju Mohan (supra) are
reproduced hereinafter:

"10. In order to appreciate,
whether contents of Section 387 IPC are
made out or not, it would be appropriate
to reproduce relevant part of judgments
passed by Supreme Court in Dhananjay
@ Dhandnjay Kumar Singh Vs. State of
Bihar and others, (2007)14 SCC 768 and
Salib @ Shalu @ Salim vs. State of U.P.
and others, 2023 INSC 687:

Dhananjay
@
Dhandnjay
Kumar Singh (Supra)

"5.Section 384 provides for
punishment for extortion. What would be
an extortion is provided under Section
383 of the Penal Code in the following
terms:

"383.Extortion.--Whoever
intentionally puts any person in fear of
any injury to that person, or to any other,
and thereby dishonestly induces the
person so put in fear to deliver to any
person any property or valuable security,
or anything signed or sealed which may
be converted into a valuable security,
commits ''extortion'."

6.A
bare
perusal
of
the
aforementioned
provision
would
demonstrate that the following ingredients
would constitute the offence:

1. The accused must put any
person in fear of injury to that person or
any other person.

2. The putting of a person in such
fear must be intentional.

3. The accused must thereby
induce the person so put in fear to deliver
to any person any property, valuable
security or anything signed or sealed which
may be converted into a valuable security.

4. Such inducement must be done
dishonestly.
464 INDIAN LAW REPORTS ALLAHABAD SERIES

7. A First Information Report as
is well known, must be read in its entirety.
It is not in dispute that the parties entered
into transactions relating to supply of bags.
The fact that some amount was due to the
appellant from the First Informant, is not in
dispute. The First Information Report itself
disclosed that accounts were settled a year
prior to the date of incident and the
appellant owed a sum of about Rs.400-500
from (sic) Gautam Dubey (sic).

8. According to the said Gautam
Dubey, however, a sum of Rs.1500/- only
was due to him.

9. It is in the aforementioned
premise the allegations that Gautam Dubey
and the appellant slapped the first
informant and took out Rs.1580/- from his
upper pocket must be viewed.

10. No allegation was made that
the money was paid by the informant
having been put in fear of injury or putting
him in such fear by the appellant was
intentional.

11.
The
first
informant,
admittedly, has also not delivered any
property or valuable security to the
appellant.

12. A distinction between theft
and extortion is well known. Whereas
offence of extortion is carried out by
overpowering the will of the owner; in
commission of an offence of theft the
offender's intention is always to take
without that person's consent.

13. We, therefore, are of the
opinion that having regard to the facts and
circumstances of the case, no case under
Section 384 of the Penal Code was made
out in the first information report."

Salib @ Shalu @ Salim (supra)

"21.
"Extortion"
has
been
defined in Section 383 of the IPC as
follows:-

"Section
383.
Extortion.-
Whoever intentionally puts any person in
fear of any injury to that person, or to any
other, and thereby dishonestly induces the
person so put in fear to deliver to any
person any property or valuable security or
anything signed or sealed which may be
converted into a valuable security, commits
'extortion.
Illustrations

(a) A threatens to publish a
defamatory libel concerning Z unless Z
gives him money. He thus induces Z to give
him money. A has committed extortion.

(b) A threatens Z that he will keep
Z's child in wrongful confinement, unless Z
will sign and deliver to A a promissory note
binding Z to pay certain monies to A. Z
sings and delivers the note. A has
committed extortion.

(c) A threatens to send club-men
to plough up Z's field unless Z will sign and
deliver to B a bond binding Z under a
penalty to deliver certain produce to B, and
thereby induces Z to sign and deliver the
bond. A has committed extortion.

(d) A, by putting Z in fear of
grievous hurt, dishonestly induces Z to sign
or affix his seal to a blank paper and
deliver it to A. Z sings and delivers the
paper to A. Here, as the paper so signed
may be converted into a valuable security.
A has committed extortion."

22. So from the aforesaid, it is
clear that one of the necessary ingredients
of the offence of extortion is that the victim
must be induced to deliver to any person
any property or valuable security, etc. That
is to say, the delivery of the property must
be with consent which has been obtained by
putting the person in fear of any injury. In
contrast to theft, in extortion there is an
element of consent, of course, obtained by
putting the victim in fear of injury. In
extortion, the will of the victim has to be
7 All. Ms. Kritika Kaushik @ Hanu & Anr. Vs. State of U.P. & Anr.
465
overpowered by putting him or her in fear
of injury. Forcibly taking any property will
not come under this definition. It has to be
shown that the person was induced to part
with the property by putting him in fear of
injury. The illustrations to the Section given
in the IPC make this perfectly clear.

23. In the aforesaid context, we
may refer to the following observations
made by a Division Bench of the High
Court of Patna in Ramyad Singh v.
Emperor Criminal Revision No. 125 of
1931 (Pat):-

"If the facts had been that the
complainant's thumb had been forcibly
seized by one of the petitioners and had
been applied to the piece of paper
notwithstanding his struggles and protests,
then I would agree that there is good
ground
for
saying
that
the
offence
committed whatever it may be, was not the
offence
of
extortion
because
the
complainant would not have been induced
by the fear of injury but would have simply
been the subject of actual physical
compulsion."

It was held:-

"It is clear that this definition
makes it necessary for the prosecution to
prove
that
the
victims
Narain
and
Sheonandan were put in fear of injury to
themselves or to others, and further, were
thereby dishonestly induced to deliver
papers containing their thumb impressions.
The prosecution story in the present case
goes
no
further
than
that
thumb
impressions were 'forcibly taken' from
them. The details of the forcible taking
were apparently not put in evidence. The
trial Court speaks of the wrists of the
victims being caught and of their thumb
impressions being then 'taken' ....... The
lower Courts only speak of the forcible
taking of the victim's thumb impression;
and as this does not necessarily involve
inducing the victim to deliver papers with
his thumb impressions (papers which could
no doubt be converted into valuable
securities), I must hold that the offence of
extortion is not established."

24. Thus, it is relevant to note
that nowhere the first informant has stated
that out of fear, she paid Rs. 10 Lakh to the
accused persons. To put it in other words,
there is nothing to indicate that there was
actual delivery of possession of property
(money) by the person put in fear. In the
absence of anything to even remotely
suggest that the first informant parted with
a particular amount after being put to fear
of any injury, no offence under Section 386
of the IPC can be said to have been made
out." (Emphasis supplied)

11. I have carefully perused the
contents of complaint, statements recorded
under Sections 200 and 202 Cr.P.C. as well
as
impugned
order. As
referred
in
Dhananjay @ Dhandnjay Kumar Singh
(supra) and Salib @ Shalu @ Salim
(supra), in order to make out a case of
extortion, one of the essential ingredient is
to deliver any property or valuable security
being under threat by Complainant to
accused, whereas in the present case such
ingredient is absolutely missing as it was
not a case of Complainant that he actually
handed over Rs. 5 lacs to accused.

12. The nature of allegation is
that Complainant was put under threat of
fear of death that he has to pay Rs. 5 lacs
to run the business of Gutkha but
admittedly no amount was paid. A
reference
be
taken
of
statement
of
Complainant and other witnesses being
part of present order that, "बिंदूक र्ान दी
और बोले कक अर्र अपना र्ुटखा िलाना
हो र्ो मुझे 5,00,000 रूपये हर महीने दो".

13. The words used in Section
387 IPC, i.e., "in order to the committing
466 INDIAN LAW REPORTS ALLAHABAD SERIES
of extortion" is used for an act committed
during act of extortion and for that act of
extortion has to be concluded in terms of
Section 383 IPC.

14. In aforesaid circumstances,
since in the present case act of 'extortion'
was not concluded as Rs. 5 lacs was not
paid, therefore, offence under Section 383
IPC was not made out and consequently
offence under Section 387 IPC was also not
made out. [See, Dhananjay @ Dhandnjay
Kumar Singh (supra) and Salib @ Shalu @
Salim (supra)]"

8. As referred above, in order to prove
the offence of extortion there must be
delivery of amount demanded. However, as
clearly
reflected
from
statements
of
Complainant as well as witnesses the
alleged demand of Rs. 1 crore was never
materialized as it was never handed over by
Complaint to applicants. As such, offence
under Section 383 IPC punishable under
Section 384 IPC is not made out.

9. In order to appreciate the
submission with regard to offence under
Section 504 IPC, the Court takes note of a
judgment passed by Supreme Court in
Mohammad Wajid and another vs. State
of U.P. and others, 2023 INSC 683
wherein the Court considered ingredients of
Section 503 IPC and relevant paragraphs of
judgment are mentioned hereinafter:

"23. Chapter XXII of the IPC
relates to Criminal Intimidation, Insult and
Annoyance. Section 503 reads thus:-

"Section
503.
Criminal
intimidation. -Whoever threatens another
with any injury to his person, reputation or
property, or to the person or reputation of
any one in whom that person is interested,
with intent to cause alarm to that person,
or to cause that person to do any act which
he is not legally bound to do, or to omit to
do any act which that person is legally
entitled to do, as the means of avoiding the
execution of such threat, commits criminal
intimidation.

Explanation.-A threat to injure
the reputation of any deceased person in
whom the person threatened is interested,
is within this section.

Illustration

A, for the purpose of inducing B
to resist from prosecuting a civil suit,
threatens to burn B's house. A is guilty of
criminal intimidation."

Section 504 reads thus:-

"Section 504. Intentional insult
with intent to provoke breach of the
peace.-Whoever intentionally insults, and
thereby gives provocation to any person,
intending or knowing it to be likely that
such provocation will cause him to break
the public peace, or to commit any other
offence,
shall
be
punished
with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both."
XXXXX

24. An offence under Section 503
has following essentials:-

1) Threatening a person with any
injury;

(i) to his person, reputation or
property; or

(ii) to the person, or reputation of
any one in whom that person is interested.

2) The threat must be with intent;

(i) to cause alarm to that person;
or

(ii) to cause that person to do any
act which he is not legally bound to do as
the means of avoiding the execution of such
threat; or

(iii) to cause that person to omit
to do any act which that person is legally
7 All. Ms. Kritika Kaushik @ Hanu & Anr. Vs. State of U.P. & Anr.
467
entitled to do as the means of avoiding the
execution of such threat.

25. Section 504 of the IPC
contemplates
intentionally
insulting
a
person and thereby provoking such person
insulted
to
breach
the
peace
or
intentionally insulting a person knowing it
to be likely that the person insulted may be
provoked so as to cause a breach of the
public peace or to commit any other
offence. Mere abuse may not come within
the purview of the section. But, the words
of abuse in a particular case might amount
to an intentional insult provoking the
person insulted to commit a breach of the
public peace or to commit any other
offence. If abusive language is used
intentionally and is of such a nature as
would in the ordinary course of events lead
the person insulted to break the peace or to
commit an offence under the law, the case
is not taken away from the purview of the
Section merely because the insulted person
did not actually break the peace or commit
any offence having exercised self control or
having been subjected to abject terror by
the offender. In judging whether particular
abusive language is attracted by Section
504, IPC, the court has to find out what, in
the ordinary circumstances, would be the
effect of the abusive language used and not
what the complainant actually did as a
result of his peculiar idiosyncrasy or cool
temperament or sense of discipline. It is the
ordinary general nature of the abusive
language that is the test for considering
whether the abusive language is an
intentional insult likely to provoke the
person insulted to commit a breach of the
peace and not the particular conduct or
temperament of the complainant.

26. Mere abuse, discourtesy,
rudeness or insolence, may not amount to
an intentional insult within the meaning of
Section 504, IPC if it does not have the
necessary element of being likely to incite
the person insulted to commit a breach of
the peace of an offence and the other
element of the accused intending to
provoke the person insulted to commit a
breach of the peace or knowing that the
person insulted is likely to commit a breach
of the peace. Each case of abusive
language shall have to be decided in the
light of the facts and circumstances of that
case and there cannot be a general
proposition that no one commits an offence
under Section 504, IPC if he merely uses
abusive language against the complainant.
In King Emperor v. Chunnibhai Dayabhai,
(1902) 4 Bom LR 78, a Division Bench of
the Bombay High Court pointed out that:-

"To constitute an offence under
Section 504, I.P.C. it is sufficient if the
insult is of a kind calculated to cause the
other party to lose his temper and say or do
something violent. Public peace can be
broken by angry words as well as deeds."
(Emphasis supplied)

10. As discussed above, in the
statements of Complainant as well as
witnesses the nature of threat is not
specified that whether it will fall within the
parameters that person to whom insult was
made was likely to commit an act which
would provoke breach of peace. As such,
ingredients of Section 504 IPC are also not
made out.

11. Lastly, this Court proceed to
consider the argument with regard to
offence under Section 406 IPC, i.e.,
criminal breach of trust. There is merit in
the argument of learned counsel for
applicant that date of offence of criminal
breach of trust are different, therefore, the
very basis of offence does not survive. Still
this Court further proceed that even the
statements considered to be true, can it be a
468 INDIAN LAW REPORTS ALLAHABAD SERIES
case of criminal breach of trust since basis
element of entrustment is missing. In this
regard, it would be apposite to refer a
judgement passed by Supreme Court in
Vijay Kumar Ghai and others vs. State
of West Bengal and others, (2022) 7 SCC
124 wherein the ingredients for criminal
breach of trust were discussed and relevant
paragraphs
thereof
are
mentioned
hereinafter:

"27. Section 405 of IPC defines
"Criminal Breach of Trust" which reads as
under: -

"405. Criminal breach of trust.--
Whoever, being in any manner entrusted
with property, or with any dominion over
property, dishonestly misappropriates or
converts to his own use that property, or
dishonestly uses or disposes of that
property in violation of any direction of law
prescribing the mode in which such trust is
to be discharged, or of any legal contract,
express or implied, which he has made
touching the discharge of such trust, or
wilfully suffers any other person so to do,
commits "criminal breach of trust".

The essential ingredients of the
offence of criminal breach of trust are:-

(1)
The
accused
must
be
entrusted with the property or with
dominion over it,

(2) The person so entrusted must
use that property, or;

(3) The accused must dishonestly
use or dispose of that property or wilfully
suffer any other person to do so in
violation,

(a) of any direction of law
prescribing the mode in which such trust is
to be discharged, or;

(b) of any legal contract made
touching the discharge of such trust.

28. "Entrustment" of property
under Section 405 of the Indian Penal
Code, 1860 is pivotal to constitute an
offence under this. The words used are, ''in
any manner entrusted with property'. So, it
extends to entrustments of all kinds whether
to clerks, servants, business partners or
other persons, provided they are holding a
position
of
''trust'.
A
person
who
dishonestly
misappropriates
property
entrusted to them contrary to the terms of
an obligation imposed is liable for a
criminal breach of trust and is punished
under Section 406 of the Penal Code.

29. The definition in the section
does not restrict the property to movables
or immoveable alone. This Court in R K
Dalmia vs Delhi Administration, (1963) 1
SCR 253 held that the word ''property' is
used in the Code in a much wider sense
than the expression ''moveable property'.
There is no good reason to restrict the
meaning
of
the
word
''property'
to
moveable property only when it is used
without any qualification in Section 405.

30. In Sudhir Shantilal Mehta Vs.
CBI, (2009) 8 SCC 1 it was observed that
the act of criminal breach of trust would,
Interalia mean using or disposing of the
property by a person who is entrusted with
or has otherwise dominion thereover. Such
an act must not only be done dishonestly
but also in violation of any direction of law
or any contract express or implied relating
to carrying out the trust."

12. In view of above, since
ingredients of above referred offences are
not made out, therefore, it is a fit case
wherein inherent power under Section 482
Cr.P.C. can be exercised in the light of para
102 of judgment passed by Supreme Court
in State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426.
For reference para 102(7) of Bhajan Lal
(supra)
is
reproduced
hereinafter:
7 All. Sanehi @ Ram Sanehi Vs. State of U.P. & Anr.
469

"(7)
Where
a
criminal
proceeding is manifestly attended with
mala fide and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."

13. Since Applicant-1 has already
initiated criminal proceedings against her
husband and in-laws, therefore, it is a case
wherein opposite parties have initiated
present
proceedings
for
wreaking
vengeance.

14. The outcome of above discussion
is that, the application is allowed. Entire
proceedings of Complaint Case No. 3921
of 2023 as well as summoning order dated
18.12.2023 passed by Additional Civil
Judge (Senior Division)/ Additional Chief
Judicial
Magistrate,
Court
No.
4,
Ghaziabad, are hereby quashed.

15. Registrar (Compliance) to take
steps.
----------
(2024) 7 ILRA 469
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482. No. 2778 of 2018

Sanehi @ Ram Sanehi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Raj Kr. Singh Suryavanshi

Counsel for the Opposite Parties:
G.A., Nadeem Murtaza
(A) Criminal Law - Maintainability of
Application
-
The
Code
of
criminal
procedure, 1973 - Section 482 - Inherent
power, Section 397 - revision, Indian
Penal Code, 1860 - Sections 147, 148, 149,
302, 504 - mere availability of alternative
remedy cannot be a ground to disentitle
the relief under Section 482 CrPC - Section
482 CrPC powers can be exercised despite
alternative remedies - High Courts should
exercise self-restraint and consider each
case
on
its
merits,
rather
than
mechanically dismissing applications due
to alternative remedies.(Para - 8,9,10 )

Summoning order passed by Magistrate -
challenged before revisional court - revisional
Court interfered in summoning order
-
whereby Magistrate summoned the persons
impleaded as opposite parties in Complaint
Case - impugned order (dated 13.04.2018)
was passed by a revisional court under
Section 397 Cr.P.C. - applicant has right to a
revision remedy - preliminary objection raised
by opposite party to the maintainability of an
application under Section 482 Cr.P.C..(Para 1
to 5)

HELD: - Application under Section 482 CrPC
held maintainable; matter listed for final
disposal. (Para -11,12)

Application pending. (E-7)

List of Cases cited:

1. Vipin Sahni & anr. Vs C.B.I., 2024 SCC OnLine
SC 511

2. Drigpal Singh & ors. Vs Sanehi @ Ram Sanehi
& ors., SLP(Crl.) No. 8396 of 2018 (Criminal
Appeal No. 366 of 2024)

3. Prabhu Chawla Vs St. of Raj. & anr., (2016)
SCC OnLine SC 905

4. Vijay & anr. Vs St. of Maha., (2017) 13 SCC
317

5. Mohit Vs St. of U.P., (2013) 7 SCC 789

(Delivered by Hon'ble Saurabh Lavania, J.)