Thursday, 29 December 2016

When offence of S 504 of IPC is not made out?

Section 504 of the IPC under which cognizance has been
taken by the learned Chief Judicial Magistrate reads thus :-
“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.”

11. From a reading of Section 504 of the IPC, it would be
clear that the essential ingredients of the offence are as under :
(1) That the accused insulted some person;
(2) That he did so intentionally;
(3) That he thereby gave provocation to that person;
(4) That he intended, or knew that it was likely that such
provocation would cause that person to break the
peace or to commit any other offence.
12. Mere abuse unaccompanied by an intention to cause
breach of peace or knowledge that breach of peace is likely that such
provocation would cause that person to break the peace or to commit
any other offence does not come within the offence as defined under
Section 504 of the IPC. A vague allegation that the accused abused
the opposite party in filthy language would not be sufficient to attract
the ingredients of Section 504 of the IPC. In order to attract the
ingredients of the offence under Section 504 of the IPC, it would be
necessary that actual words used or supposed to have been used
should be mentioned in the complaint/written report otherwise it
would be extremely difficult for the court to decide whether or not the
words used amounted to intentional insult. Also, the words used
which amounted to intentional insult should be such that it intended
to break the peace.
13. In the present case, learned counsel for the petitioner has
rightly submitted that no offence under Section 504 of the IPC is
made out as the informant has not given out the actual words of abuse
in his written report and the informant has nowhere disclosed that the
insulting words used by the accused had provoked him or that the
accused intended or knew that the provocation was likely to cause the
informant either to break the peace or to commit an offence.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.33181 of 2013

Shiv Sundar Bharti 
V
 State Of Bihar

CORAM: MR. JUSTICE ASHWANI KUMAR SINGH

Date: 04-08-2016
Citation:2016 CRLJ4761 Patna

This application under Section 482 of the Code of
Criminal Procedure (for short ‘CrPC’) is directed against the order of
cognizance dated 29.09.2012 passed by the learned Chief Judicial
Magistrate at Araria in G.R. No. 2182 of 2011 arising out of Sikti
P.S. Case No. 88 of 2011 under Section 504 of the Indian Penal Code
(for short ‘IPC’) and the entire proceeding of the aforementioned
case.
2. The case of the prosecution, in brief, is that the opposite
party no.2 Nand Lal Rishideo lodged a written report on 19.09.2011
before the S.H.O. of Sikti Police Station alleging therein that he along
with Md. Wasim jointly took settlement of Pond No.3 at Masunda 
from the Fisheries Department for fish rearing. He has invested
Rs.10,000/-. On 15.09.2011 at about 10.00 a.m., Siya Ram Sada with
seven others including the petitioner came there and after abusing the
informant looted away one and a half quintal of fish valued at
Rs.15,000/- and on protest accused Siya Ram Sada took away a
fishing net valued at Rs.6,000/-. All the accused pushed the informant
and extended threat to leave the pond otherwise he would be killed. It
is also stated that there has been delay since a panchayati was to be
convened which did not take place.
3. On the basis of the allegation made above regarding the
occurrence which took place on 15.09.2011, Sikti P.S.Case No. 88 of
2011 was registered on 19.09.2011 under Sections 447, 341, 342,
323, 504 and 379/34 of the IPC against Siya Ram Sada and seven
others including the petitioner.
4. The police took up investigation and on completion of
investigation the allegation with regard to taking away of the fish or
fishing net was not found true and it was stated in the police report
that all the allegations except of abusing are incorrect and hence the
police report under Section 173(2) of the CrPC was submitted only
for the offence punishable under Section 504 of the IPC.
5. On perusal of the police report, the learned Chief
Judicial Magistrate at Araria took cognizance of the offence under 
Section 504 of the IPC vide order dated 29.09.2012 against the
accused persons named in the FIR holding that from perusal of the
case diary a prima facie case is made out under Section 504 of the
IPC. After cancelling the jurisdiction of Gram Kachahari, the case
was transferred for disposal and summons were ordered to be issued
fixing 27.11.2012 for appearance of the accused persons.
6. It is submitted by Mr. Arun Prasad Ambastha, learned
counsel for the petitioner that the impugned order taking cognizance
of the offence is bad in law as also on facts. He has submitted that for
constituting an offence punishable under Section 504 of the IPC, it is
required that the complainant/informant must mention the actual
words of abuse which were used by the accused and which amounted
to intentional insult to him. He has submitted that it is also required
that the informant must give out in his complaint/written report that
the accused intended or knew that the insulting words used by them
were likely to cause the informant either to break the peace or commit
any other offence.
7. He has submitted that the only allegation in the written
report is that the accused persons abused the informant. The
informant has not given out actual words of abuse in his written
report which were alleged to have been used by the accused. Not only
this, the informant has not stated in the written report that he was 
provoked by the abuse.
8. On the other hand, Dr. Mayanand Jha, learned
Additional Public Prosecutor appearing for the State has submitted
that though the actual word of abuse has not been mentioned in the
written report, the same in itself would not exonerate the accused
persons from being prosecuted for the offence punishable under
Section 504 of the IPC. He has submitted that from perusal of the
allegations made in the FIR, it would be apparent that the accused
persons had used abusive language. He has also submitted that the
prosecution may prove before the court by leading evidence during
trial that abusive words used, as alleged in the FIR, were intended to
insult the informant. Hence, at this stage, it cannot be said that the
order passed by the learned Chief Judicial Magistrate is bad in law.
9. I have heard respective counsel for the parties and
perused the record.
10. Section 504 of the IPC under which cognizance has been
taken by the learned Chief Judicial Magistrate reads thus :-
“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.”

11. From a reading of Section 504 of the IPC, it would be
clear that the essential ingredients of the offence are as under :
(1) That the accused insulted some person;
(2) That he did so intentionally;
(3) That he thereby gave provocation to that person;
(4) That he intended, or knew that it was likely that such
provocation would cause that person to break the
peace or to commit any other offence.
12. Mere abuse unaccompanied by an intention to cause
breach of peace or knowledge that breach of peace is likely that such
provocation would cause that person to break the peace or to commit
any other offence does not come within the offence as defined under
Section 504 of the IPC. A vague allegation that the accused abused
the opposite party in filthy language would not be sufficient to attract
the ingredients of Section 504 of the IPC. In order to attract the
ingredients of the offence under Section 504 of the IPC, it would be
necessary that actual words used or supposed to have been used
should be mentioned in the complaint/written report otherwise it
would be extremely difficult for the court to decide whether or not the
words used amounted to intentional insult. Also, the words used
which amounted to intentional insult should be such that it intended
to break the peace.
13. In the present case, learned counsel for the petitioner has
rightly submitted that no offence under Section 504 of the IPC is
made out as the informant has not given out the actual words of abuse
in his written report and the informant has nowhere disclosed that the
insulting words used by the accused had provoked him or that the
accused intended or knew that the provocation was likely to cause the
informant either to break the peace or to commit an offence.
14. In view of the discussions made hereinabove, the
impugned order dated 29.09.2012 passed by the learned Chief
Judicial Magistrate at Araria in G.R. No. 2182 of 2011 arising out of
Sikti P.S. Case No. 88 of 2011 cannot be sustained. It is set aside,
accordingly. As a consequence of quashing of the impugned order
dated 29.09.2012, the entire proceedings of the aforementioned case
are also quashed.
15. The application stands allowed.
Pradeep/-
(Ashwani Kumar Singh, J)

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