J.D. Kapoor, J.
1. Through the above mentioned petitions the legality as well as validity of the impugned order dated 2nd November, 2002 passed by Ms. Kamini Lau, Metropolitan Magistrate has been challenged.
2. Bare facts and perusal of the order show that erroneous approach has been adopted by the learned Metropolitan Magistrate in not accepting the report submitted by the Investigating Officer for closure of the case due to insufficiency of evidence and that no case of extortion and criminal intimidation as punishable under Sections 386/506/34 IPC is made out against the petitioners who are Senior Doctors of Mool Chand Hospital. They have been accused of forcing the respondent Dr. Rajiv Johri to submit resignation else his services would be terminated and employing threat that if he would not resign, they would send letters to all the hospitals informing about his termination and thereby he would not get job anywhere.
3. This act on their part has been brought by the MM within the mischief of 'extortion' and 'criminal intimidation'. Offence under Section 386 IPC punishes a person who puts any other person in fear of death or grievous hurt for the purpose of dishonestly inducing the person to deliver to him any property or valuable security or anything signed or sealed which may be converted into a valuable security. Offence under Section 506 IPC prescribes punishment for 'criminal intimidation'. Mischief of 'criminal intimidation' means giving threat with an intention to cause any injury to any person or his reputation or property.
4. While rejecting the report of the Investigating Officer and taking cognizance learned MM observed that since the management (of the hospital) is in advantageous position to have influence on their staff, subordinates and doctors, and petitioners being in dominant position appear to have forced the complainant to resign and forcing its employee to submit resignation is criminal and in violation of public policy and thereby the petitioners have committed offences punishable under Section 386/506/34 IPC.
5. Facts of the case speak for themselves as how the impugned order not only suffers from inherent infirmity but illegality is also writ large.
6. Dr. Rajiv Johri was employed as Senior Resident with Moolchand Hospital. He lodged a report with the police station that he has been harassed and tortured by the petitioners Mr. H.S. Shekhawat, Managing Director of the Hospital and Dr. Sudhir Krishna and Dr. Kapil Garg who forced him to resign. In order to examine the impugned order in the correct perspective the contents of the report that pursuaded the learned MM to take cognizance of as serious offences as punishable under Sections 386/506/34 IPC need to be reproduced. F.I.R. reads as under:-
'To, the SHO, P.S. Lajpat Nagar, New Delhi. Sub: complaint against Dr. Sudhir Krishna and Mr. H.S. Shekhawat and Dr. Kapil for extorting resignation from me and for threatening to see me and ruin my career. Sir, I am a doctor (Surgeon) by profession and was appointed as Senior Resident (Surgery) under coordinator Dr. Nigam in Mool Chand Hospital. My contract was to expire in June, 2001. On 19.4.2001 Mr. Satish Chandra all of a sudden called me in his office where Mr. H.S. Shekhawat Dr. Sudhir Krishna and Dr. Kapil were sitting. They commanded me that I should tender resignation otherwise I will be terminated. When, I asked why this resignation is demanded from me when I am doing my duty with utmost honesty and sincerity for the last two years, they informed that their strategy is to throw all the old employees out so that they should not, be made to pay Rs. 6000/- bonus which they were bound to pay to resident doctor in June, 2001 and the salary on my questioning, they threatened me that in case I did not tender resignation they will ruin my career and they will not even give experience certificate and they will send letters to all the hospitals against me so that I may not get any job anywhere. To fulfill their illegal design, they conspired with Dr. Sudhir Krishna - Consultant and obtained a complaint of a trivial incident when Dr. Sudhir Krishna got annoyed with me on my late arrival at 10.15 AM through I had already informed - Dr. Nasir on phone that due to illness of my father-in-law I will be late. As per the normal procedure of the hospital the doctor on 24 hrs duty is to give cover if other doctor gets late. Dr. Sanjay Garg was on 24 hRs. duty on that date and as per rules he had to give cover. This was a trivial matter which happens with everyone in the hospital on account of sudden inability of the doctor to reach hospital but to out me, they conspired with Dr. Krishna to extort my resignation. They also threatened me that if I complaint against this extortion anywhere, they shall see me. I requested them that sometime be given to me for thinking over but they threatened to take the help of muscle men and dictated the language of resignation waiving the 10 days notice period, which a person had to give before resignation. On these constant threats by my seniors to my career. I lost my mental balance and tendered the resignation out of threat/coercion aforesaid. As I am an educated man and was very much depressed and terrified and did not desire to aggravate the matter and kept quiet. However, on 10/5/2001 in the morning when I went to the hospital for collecting my experience certificate and dues I met Dr. Shekhawat in the hospital for my experience certificate and dues. He told me that they won't give me experience certificate and my dues and I can do whatever I like. Even the other employees from whom they have forcibly extorted the resignations have failed to do anything. On this flat refusal, I have now decided not to bear the injustice and am lodging this complaint for taking action against Dr. Sudhir Krishna, Mr. H.S. Shekhawat, Dr. Kapil who are instrumental in extorting resignation from me and for threatening me and also against the management of Mool Chand Hospital. Thanking you, yours faithfully, sd/- (Dr. Rajiv Johri) r/o L-394, Sarita Vihar, Delhi dt. 10-5-2001, Sir Duty Officer Sahib Police Station.........ASI/DD
sd/- ASI Sd/-'
7. During investigation, the IO recorded statement of several witnesses including some doctors, employees and staff of the hospital but did not find any evidence in support of the allegations. Rather he found that there does not exist a cordial relationship between the management and hospital employees and the hospital management is facing litigations in a number of cases filed by disgruntled employees/staff members and submitted the report u/s 173 Cr.P.C. for closure of the case on the basis of the result of investigation contemplated u/s 169 Cr.P.C. However, this did not find favor with the learned MM who directed further investigation by District Investigating Unit of Crime Branch as the complainant had made allegations against the Investigating Officer and SHO of the Police Station. District Investigating Agency Unit investigated the matter and the SHO forwarded the final report dated 18.6.2002 to the Magistrate with the following conclusion:-
'Dr. Johari was asked to give witness from his side but he did not provide any witness of any kind. As per investigation till date this matter is found to be service matter/administrative. All this matter is in case file. No proof sufficient for arresting Dr. Sudhir Krishna, Dr. Kapil and Dr. Shekhawat have come on record that is why no arrest was made. Despite this, I am preparing the challan against above three accused persons for closure. If court so desires, it may summon the above three accused persons and close the matter.'
8. Aforesaid conspectus of facts manifestly demonstrate that the learned MM proceeded entirely on the presumptive and conjectural premise that management being in much advantageous and dominant position appears to have forced the respondent to resign and thereby committed offences under Sections 386/506/34 IPC.
9. I am afraid if such cases are allowed to be registered and taken cognizance, then no employer would be safe and loose his authority to have effective control over their employees or take decisions in the interests of the organisation. What was expected from the learned MM was at first instance to find out whether allegations made by the complainant make offences punishable under Sections 386/506/34 IPC or not. Instead of going into the ingredients of the offences, the learned MM rushed to the conclusion that the conduct of the management of the hospital forcing its employee to submit resignation is criminal and in violation of public policy. I fail to understand how does the element of public policy come in in a criminal act of a person. As is apparent even further investigation made by independent Agency did not find sufficient evidence and asked for closure of the case. Since the Magistrate has no power to direct the Investigating Agency/Officer-in-charge of the Police Station to file the chargesheet, learned MM on the basis of material contained in the final report for closure of the case took the cognizance of offences against the petitioners and summoned them.
10. Let us examine the relevant provisions of law. Section 169 Cr.P.C. empowers the police to release the accused in case of deficiency of evidence. It provides as under:-:-
'169. Release of accused when evidence deficient.- If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient, evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.'
11. Section 173 Cr.P.C. places an obligation upon the Officer-in-charge of the Police Station to forward the final report as soon as investigation is completed. It provides as under :-
'173. Report of police officer on completion of investigation.-
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating -
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given.
(3) xxxx
(4) xxxx
(5) xxxx
(6) xxxx
(7) xxxx
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).'
12. As is apparent 'police report' referred in 173 (2) Cr.P.C. includes the report prepared u/s 169 Cr.P.C. Another relevant provision is Section 190 Cr.P.C. whereby the Magistrate is empowered to take cognizance. It reads as under:-
'190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any persons other than a police officer , or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.'
13. As is apparent from the aforesaid provisions of Sections 169, 173 and 190 Cr.P.C. the Magistrate has the following options whenever a final report u/s 173 Cr.P.C. is submitted to him:-
(i) In case the report concludes that an offence is made out, he may either accept the same and take cognizance of the offence or disagree and drop the proceedings.
(ii) In case the report concludes that offence is not made out, he may agree with it and discharge the accused.
(iii) If he finds that the investigation is incomplete and unsatisfactory, he may direct the police to further investigate the matter.
14. Aforesaid options available to the Magistrate show that there is no power, expressly or impliedly conferred under the Code on a Magistrate to call upon the police to submit a chargesheet, when they have sent a report u/s 173 of the Code, that there is no case made out for sending up an accused for trial.
15. There is no gainsaying that the provisions of Section 173 Cr.P.C. enjoin upon the Magistrate to satisfy himself not only about the sufficiency of evidence but also the existence of ingredients of the offence on the basis of the material appearing in the final report submitted by the investigating agency while summoning the accused. However where the Investigating Agency/Officer-in-charge of Police Station recommends for closure of case on account of either insufficiency of evidence or the offences having not been made out, the Magistrate is required to not only give reasons for not agreeing with the report but also refer to the evidence and material on which he proposes to take cognizance of the offences by spelling out the ingredients of the offences. Similarly when a Magistrate decides not to take cognizance and to drop the proceedings on receiving the report forwarded u/s 173 Cr.P.C. concluding that an offence appears to have been committed, it is incumbent upon the Magistrate to give notice to the informant i.e. Complainant and provide him an opportunity to be heard at the time of consideration of the report. Here is a case where converse proposition of law was involved before the Supreme Court. Proposition was whether the complainant/Informant/or Injured is required to be heard before the Magistrate decides not to act upon the final report u/s 173 Cr.P.C. and decides to drop the proceedings inspire of the report that an offence appears to have been committed. Supreme Court provided the following answer:-
'There can, thereforee, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station under sub-section (2) (i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2) (i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.'
16. Let us examine the ingredients of Sections 386 and 506 IPC.
17. Section 386 IPC reads as under:-
'386. Extortion by putting a person in fear of death or grievous hurt to.- Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.'
18. Bare reading of Section 386 IPC shows that this provision comes into play when any person commits 'extortion' by putting any person in fear of death or of grievous hurt to that person or to any other person. Mischief of 'Extortion' has been defined in Section 383 IPC. It reads as under:-
'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'.'
19. As is apparent from the definition of 'extortion' the accused should have an intention to put any person in fear of any injury to that person or any other person for the purpose of dishonestly inducing that person to deliver to him any property or valuable security or anything signed or sealed which may be converted into valuable security. It is beyond comprehension as to how does the resignation letter of a person fall within the ambit of a property or a valuable security or a document capable of being converted into valuable security.
20. Mere asking an employee to put in his resignation paper, otherwise his services would be terminated and if information about termination of service is sent to organisations employing the same kind of personnel he may not get any job does not come within the mischief of 'extortion'. Writing letters is neither putting any person in fear of death or of grievous hurt for the purpose of dishonestly inducing that person to deliver any property or valuable security or anything signed or sealed which may be converted into a valuable security. It appears that the learned MM was labouring under a misconception that a 'resignation letter' of an employee is such a document that could have been converted by the petitioners/employers into a valuable security. Such a view is difficult to ram down the throat and is highly preposterous.
21. Next comes the offence punishable under Section 506 IPC. This offence relates to 'criminal intimidation'. 'Criminal intimidation' has been defined in Section 506 IPC as under:-
'506. Punishment for criminal intimidation.- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc. - and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.'
22. Apparently allegations in the FIR do not come within the ambit of a threat with an intention to cause any injury to the respondent or his reputation or property. Learned MM appears to have been swayed by the fact that every management being in an advantageous and dominant position has influence on their employees and thereforee their act of forcing an employee to submit resignation amounts to extortion and criminal intimidation.
23. Asking an employee to either resign or face termination is rather an act of generosity and for the benefit of the concerned employee. Advice of resignation was to save the reputation of the complainant than causing injury to the reputation. Carrying a stigma of termination is more harmful for the future career than resigning from the job. How does such an advice fall within the mischief of 'extortion' or 'criminal intimidation' is beyond comprehension.
24. Any other kind of remedy in the form of compensation or damages may be available to the complainant on the allegations of forcing him to resign under the pall of threat to terminate his services or writing letters to other hospitals informing about his termination but by no stretch of imagination acts of the petitioners, even if assumed to be correct on the premise of the solitary statement of the complainant as no other evidence has appeared in corroboration of his version can be brought within the criminality of 'extortion' or 'criminal intimidation' as defined above.
25. Thus, after holding up the matter from all possible aspects, I find that the impugned order cannot be sustained as cognizance has to be based on material or evidence forwarded by the Officer-in-charge of the Police Station contained in report u/s 173 Cr.P.C. and in case Magistrate disagrees with the report of the Officer-in-charge, he is obliged to not only spell out the reasons but also to deal with the ingredients of the offence.
26. Foregoing reasons persuade me to allow the petition. Petition is allowed. Impugned order is set aside. As a consequence not only the first but second closure report of the Officer-in-charge of the police station stands allowed. FIR and the proceedings arising there from stand quashed.
27. In view of significant question of law and the propositions involved for determination, copy of judgment needs to be circulated among all the Judicial Officers for guidance.