Ram Niwas Kosalia vs Narender Kumar Jain

S.S. Rathore, J.

The present petition has been filed under Section 482 Cr.P.C. for quashing of complaint (Annexure Pl) and the order dated 5.6.1990 (Annexure P2) summoning the petitioner for an offence under Section 506, I.P.C. In short, the facts of the case are that the respondent Narinder Kumar Jain is a practising lawyer at Bhiwani, who filed the complaint in question against the petitioner who is posted as Joint Excise and Taxation Commissioner (Appeals) at Ambala. In the complaint, it is alleged that on 12.4.1990, the complainant appeared as a counsel in a case before Shri K.S. Arora, Deputy Excise and Taxation Commissioner, Bhiwani. Some unpleasant and not liked by the complainant incident took place during the said proceedings and later on the alleged misbehaviour of Shri K.S. Arora became source of discussion and agitation among the Taxation Bar at Bhiwani so much so the said episode appeared in the newspaper. In the background of this incident, it is further alleged that on 21.4.1990, the complainant and a few others were sitting in the office of the complainant and were talking about the programme to honour the Deputy Chief Minister, Haryana as Chief guest on some function which was to take place on 27.4.1990. When the complainant was sitting with others in his office, a telephonic call is alleged to have been received from the shop of now Shri Brij Lal Saraf at Bhiwani. In due course, said Brij Lal told the complainant that the present petitioner (respondent in the complaint), was on the line and would like to talk to him. It is further alleged in the complaint that there was a talk between him and the present petitioner. For clarity sake and to draw true meaning and intent of conversation the said conversation as given in the complaint in Hindi is as under :

"AAPNE KIYA KAR DIYA, APP HAMARE MUHKME KE KISI BHI AFSAR KO BHIWANI NAHIN RAHNE DETE. MUKHYA MANTRI KO HAMARE AFSARON KE KHILAF BHARKA KAR, APPNE ACHHA NAHIN KIYA HAI. HAMEN PATA HAI KI APP KE LAMBE HAATH HAIN. MAIN APPKO DEKH LOONGA. JIS PAR MUSTGIS NE KAHA, ULTA CHOR KOTWAAL KO DANTE. JIS PAR UNHON NE KAHA THIK HEI DEKH LOONGA."

Further, it is also said that the said talk was threatening in tone (Roman version of which has been given above). In due course, as alleged in the complaint, the said incident was discussed in the subsequent meeting. The precise grouse of the complainant is that the said threat "DEIKH LOONGA" in the said conversation, amounts to criminal intimidation, punishable under Section 506, IPC. With these allegations the complaint was filed on 1.5.1990.

After recording preliminary evidence and precisely taking into consideration the aforesaid allegations in the complaint, vide order dated 5.6.1990, the present petitioner was ordered to be summoned to face the trial under Section 506 IPC and the said order was passed by Chief Judicial Magistrate, Bhiwani.

Counsel for the parties have been heard. A careful perusal of the complaint and the conversation in its Roman version as given above, shows that no offence under Section 506, IPC is made out. Mr. R.S. Ghai counsel for the respondent has very fairly conceded that the words "MAIN DEKH LOONGA" and again "THIK HEI DEIKH LOONGA'', are the only offending allegations in the complaint, making out a case under Section 506, IPC . For facility sake, Section 503, IPC which defines criminal intimidation, reads as under :

"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 action which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."

From a plain reading of this section, it is clear that it is divisible in two parts. The first part refers to the act of threatening another with injury to his person, reputation or property or to the person or reputation of any one in whom that person in interested, the second part refers to the intent with which the threatening is done and it is of two categories, one is intent to cause alarm to the person threatened, and the second is 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.

From the language of the Section, it is also very clear that mere threat does not amount to an offence unless the threat is to cause injury to the person threatened or to any one in whom he is interested. The manner and intent in which the threat is extended is an essential ingredient of the offence.

The complainant is an Advocate. It is not clear from the words ''Mein Deikh Loonga'' or ''Thik Hei Deikh Loonga'' that what kind of threat was extended to the complainant by the petitioner on this telephonic talk. From this conversation, nothing can be made out as to what injury to the person, reputation or property of the complainant was extended by the petitioner. Even if this conversation is taken to be true, at the most it can be termed as an empty threat. No mens rea on the part of the petitioner can be attributed to him. Similarly, nothing can be made out as to with what intent the said threatening was done. In fact, the contents of the whole conversation make out no case against the petitioner of an intent to cause any alarm or harm to the person or property of the complainant. As stated above, a threat with mens rea to cause injury is an essential ingredient of an offence under Section 506, IPC. In my considered opinion, the said essential ingredients are badly missing.

The impugned summoning order also cannot stand the test of judicial scrutiny. After narrating the facts as given in the complaint and alleged to be supported by a few PWs, the learned court below has passed the following order

"XXX XXX XXX XXX XXX XXX XXX XXX

The evidence brought on record discloses sufficient ground to proceed against the accused under Section 506, IPC. Accused Ram Niwas Kosalia be accordingly summoned to stand trial under Section 506, IPC, on filing PF etc. for 19.7.1990."

The impugned order on the face of it is sketchy and nonspeaking. The trial Court has not diverted to the essential ingredients of Section 503, IPC before passing the summoning order to stand trial under Section 506, IPC.

In view of what has been stated above, the complaint as well as the summoning order (Annexure Pi) are liable to be quashed. However, I have looked at the facts of the case from another angle i.e. in view of Section 95 I.P.C. which reads as under :

"95. Act causing slight harm Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight the no person of ordinary sense and temper would complain of such harm."

Even if the conversation as stated above is taken to be correct, one cannot lose sight of the fact that the complainant is a practising lawyer on taxation side at Bhiwani and the present petitioner is also a public servant, discharging his duties as an appellate authority i.e. Joint Taxation Commissioner. It is presumable that they must be meeting each other in discharge of their duties. Even if the complainant is allowed to say that the said conversation has caused alarm or threat of injury, then that imaginary injury and harm is so slight that no person of ordinary sense and temper should complain of it. The complainant being an advocate, was expected, not to bother about what allegedly had been said to him by the petitioner on telephone. To my mind, advocate of ordinary sense and temper would never complaint of an such harm. This view of mine gets ample support from a judgment of the Hon''ble Supreme Court. While interpreting it their Lordships of the Supreme Court observed in Mrs. Veeda Menezes v. Yusuf Khan Hap Ibrahim Khan, AIR 1966 Supreme Court 1773 :

"The next question is whether, having regard to the harm caused to the appellant and to her servant Robert was so slight that no person of ordinary sense and temper would complain of such harm. Section 95 is intended to prevent penalisation of negligible wrongs or of offences of trivial character. Whether an act which amounts to an offence is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention which the offending act is done, and other related circumstances. There can be no absolute standard or degree of harm which may be regarded as so slight that a person of ordinary sense and temper would not compliant of the harm . It cannot be judged solely by the measure of physical or other injury the act causes. A soldier assaulting his colonel, a policeman assaulting his Superintendent or a pupil beating his teacher, commit offences, the heinousness of which cannot be determined merely by the actual injury suffered by the officer or the teacher, for the assault would be wholly subversive of discipline. An assault by one child on another, or even by a grown up person on another, which causes injuries may still be regarded as so slight, having regard to the way and station of life of the parties, relation between them, situation in which the parties are placed, and other circumstances in which harm is caused, that the victim ordinarily may not complain of the harm."

Resultantly, keeping in view the facts and circumstances of the case, having regard to the way and station of life of the parties, relation between them, situation in which the parties are placed and other circumstances in which harm is alleged to be caused, I am of the considered view that the criminal proceedings should not be allowed to proceed and looked from any angle, if proceedings are allowed to continue, it would amount to abuse of the process of law. Consequently, as stated earlier, the complaint (Annexure P1) as well as the summoning order (Annexure P2) are ordered to be quashed.