HABIB KHAN Vs. STATE

JUDGEMENT

(1.) The petitioners have been convicted under Section 347 of the Indian Penal Code and sentenced to three months' rigorous imprisonment and a fine of Rs. 30 each. According to the prosecution, the complainant Ramdhari Ahir was told by the petitioners, who are choukidar and daffadar, that he had stolen the 'gagra' of Munesar Ahir. This the complainant denied. The petitioners, however, said that they would take the complainant to the police station. They accordingly tied the complainant with a turban and took him towards the police station. When, however, they reached an orchard some 20 bighas from the complainant's house, the petitioners told the complainant that if he would pay them Rs. 50/- he would be released. He complainant's son, Bhirgura-san (P. W. 8), who had followed his father, the complainant, to the orchard was sent to Sarabjit (P. W. 2) to arrange for the money. Sarabjit Ahir came to the orchard and after a great deal of persuasion the petitioners accepted Rs. 25 and released the complainant. The complainant after this went to the house of Munesar Ahir (P. W. 3) and asked him as to why he had told the petitioners that he had stolen his 'gagara'. Muneswar denied having said anything of the kind. The complainant then went to Bishwanath Tiwary (P. W. 7), who is the collecting Member Punch of Union No. 1 of police station Bhore, and told him what had happened. This individual advised the complainant to file a complaint in court. This story of the prosecution has been accepted by both the courts upon the evidence led by the prosecution. In my revisional jurisdiction, I can find no reasonable ground for taking a view contrary to that of the courts of fact regarding the evidence of the prosecution witnesses.

(2.) It was urged by the learned Advocate for the petitioners that on the facts found by the courts below, that is to say the story of the complainant, there could be no conviction under Section 347, Penal Code firstly because there was no wrongful confinement and secondly because there was no extortion. It was said that wrongful confinement as defined in Section 340, Penal Code will not cover the case. The complainant was merely being taken to the police station by the petitioners. There was accordingly no wrongful confinement. It seems to me, however, on the facts accepted by both the courts below that the petitioners had tied the complainant with a turban and compelled him to proceed in the direction of the police station but detained him at an orchard where they made a proposal of payment of Rs. 50 for this release. It seems to me that the action of the petitioners in keeping the complainant tied in the orchard was certainly an act which amounted to wrongful restraint in such a manner as to prevent that person from proceeding beyond certain circumscribing limits. As to whether there was extortion, it was said that extortion as defined in Section 383, Penal Code requires the person to be put in fear of any injury and that that injury must be physical. It has been ruled long ago not only by this Court but by various High Courts in India as well as by Courts in England that the word 'injury' in such circumstances is not necessarily physical. Even a terror of a criminal charge whether true or false amounts to a fear of injury--see the cases of 'QUEEN v. MOBARAK', 7 W R (Cr.) 28, and 'REX v. JAMES GARDENER'. (1824) 1 Car & P 479. The petitioners had threatened to take the complainant to the thana on a charge of theft. They, therefore, had put him in fear of an injury. In my opinion, therefore, the act of the petitioners did amount to wrongful confinement for the purpose of extorting the complainant.

(3.) It was next urged that there could be no prosecution of the petitioners in view of Section 197, Criminal P. C. This argument is untenable on two grounds. Firstly, that it is no part of the duty of a public servant to commit acts of extortion. The decisions of the Supreme Court, the Privy Council, and this Court in connection with bribery cases clearly indicate that Section 197, Criminal P. C. has no application where a public servant takes bribe. Secondly, Section 197, Criminal P. C. refers to a public servant who can only be dismissed by the State Government or some higher authority. A choukidar and a daffadar can be dismissed by the Subdivisional Magistrate and certainly by an authority lower than the State Government.