The Bombay High Court has held that pressurizing someone into giving up his demand for the repayment of money is out of the scope of the offence of Extortion as defined under Section 383 of the Indian Penal Code.

A Division Bench of Justice Sunil B. Shukre and Justice M.M. Sathaye observed, “… this threat was not for what is understood as the offence of extortion but for pressurizing respondent no.2 into giving up his demand for repayment of money, which was out of the scope of offence of extortion, as defined under Section 383 IPC. The allegation of criminal conspiracy, in the present case, is primarily in the context of offence of extortion and that very offence having not been prima facie constituted in the present case, in our considered view, even the offence of criminal conspiracy, punishable under Section 120B IPC, cannot be said to be prima facie made out against any of these applicants.”

The Bench said that in order to constitute an offence of criminal intimidation, as defined under Section 503 IPC, the threat must have been issued to cause injury to a person or his reputation or his property with an intent to cause alarm to that person or compel that person to do some act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do.

“If these ingredients are found to be present in the FIR, it would be an offence of criminal intimidation punishable under Section 506 IPC”, further said the Bench.

Senior Advocate Aabad Ponda represented the petitioner while PP A.S. Pai and APP M.H. Mhatre represented the State and Advocate Nitin Gaware represented the complainant.

In this case, the petitioner was the accused in connection to the crime registered by the Anti-Extortion Cell, Mumbai against him. He sought quashing of the FIRs and order passed by the Joint Commissioner of Police granting approval under Section 23(1)(a) of the Maharashtra Control of Organized Crime Act, 1999 (MCOC Act), to initiate proceedings under the same against the petitioner and other accused persons.

The High Court after hearing the contentions of the counsel noted, “If we say that for slapping offence of criminal conspiracy against the applicants, offence of criminal intimidation under Section 506 IPC also provided contextual setting, we would have to examine first, if this offence is prima facie made out against the applicants or not.”

The Court further noted that once it is found that neither the offence punishable under Section 387 IPC nor the offence punishable under Section 120B IPC nor the offence punishable under Section 506 IPC, read with Section 34 IPC, is prima facie made out against the accused, the order passed by the Joint Commissioner of Police cannot be sustained in the eyes of law.

“Even if there is any continuing unlawful activity, it must be shown to be disclosing a cognizable offence punishable with imprisonment of three years or more, it must have been undertaken singly or jointly; it must have been undertaken as a member of organized crime syndicate or on behalf of such syndicate and it must have been the one in respect of which more than one charge sheet have been filed before a competent court within the preceding period of ten years, and that court must have taken cognizance of the offence”, said the Court.

The Court also observed that as per clauses (a) and (b) of sub-sections (1) and (2) of Section 22 of the MCOC Act, there has to be something like “commission of such offence” or commission of “an offence of organized crime”.

“… without there being any prima facie commission of an offence, as contemplated under these provisions of law, or without there being any material showing prima facie commission of an offence, as contemplated by these provisions of law, the presumption arising from recovery of unlawful arms or other materials or documents or papers or fingerprints or discovery of evidence about rendering of financial assistance could not be drawn. These provisions of law enable the Special Court to mandatorily presume that the accused has committed an offence of organized crime if it is proved that the documents, other material, unlawful arms, fingerprints etc. recovered from the possession of the accused had reasonable link to the commission of offence”, held the Court.

It concluded that such a presumption is rebuttable at the instance of the accused but in this case, there is no basis to hold that the accused persons have or any of them has prima facie indulged in any continuing unlawful activity prohibited by law, as envisaged in MCOC Act.

Accordingly, the Court allowed the plea, quashed the case registered against the accused, and set aside the order of the Joint Commissioner of Police.

Cause Title- Hemant Dhirajlal Banker v. State of Maharashtra & Anr. (Neutral Citation: 2023:BHC-AS:16952-DB)

Click here to read/download the Judgment