MEMORIAL ON BEHALF OF THE RESPONDENT

IN THE HONBLE HIGH OF JHARKHAND

AT RANCHI

(UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE 1973)

Criminal Case No.: XXXX of 2017

IN THE MATTER OF

MR. ARVIND THAKUR

MR. LALU THAKUR

(PETITIONERS)

VERSUS.

MR. KISHOR KUNAL

(RESPONDENT)

ON SUBMISSION TO HONBLE HIGH COURT OF JHARKHAND

SUBMITTED BY:-

RAKESH KUMAR SAHU

SEMESTER III B

ROLL NO.- 704

COUNSEL FOR THE RESPONDENT

1|Page
MEMORIAL ON BEHALF OF THE RESPONDENT

~TABLE OF CONTENTS~

1. ABBREVIATIONS........3
2. INDEX OF AUTHORITIES.4
3. LIST OF CASES5
4. STATEMENT OF JURISDICTION................6
5. STATEMENT OF FACTS................7
6. STATEMENT OF ISSUES........................................8
7. SUMMARY OF ISSUES ..........................9
8. ARGUMENTS ADVANCED..........10
THAT THE PETITIONER LACKS SUFFICIENT GROUNDS FOR INVOKING SEC 482.10
THAT INVOKING SEC 482 IN THE PRESENT PETITION IS BAD IN LAW.11
THAT THE PETITIONER IS RIGHTLY FRAMED UNDER SECTION 32312
THAT THE PETITIONER IS RIGHTLY FRAMED UNDER SEC 38314

9. PRAYER.....16

2|Page
MEMORIAL ON BEHALF OF THE RESPONDENT

~LIST OF ABBREVIATIONS~

1. A.C. : Appellate Cases

2. AIR : All India Reporter
3. Anr. : Another
4. CrPC : Code of Criminal Procedure
5. Del : Delhi
6. I.P.C : Indian Penal Code
7. Ors. : Others
8. Pat. : Patna
9. Pg. : Page
10. Raj. : Rajasthan
11. Sec : Section
12. SC : Supreme Court
13. SCC : Supreme Court Cases
14. Sd/- : Signed
15. Supp. : Supplementary
16. U.P. : Uttar Pradesh
17. v. : Versus
18. & : and
19. Cr LJ : Criminal Law Journal

3|Page
MEMORIAL ON BEHALF OF THE RESPONDENT

~INDEX OF AUTHORITIES~

STATUTES

1. CRIMINAL PROCEDURE CODE, 1973

2. INDIAN PENAL CODE, 1860

LIST OF BOOKS

1. SudiptoSarkar, Code of Criminal Procedure, Volume 2, Lexis Nexis Butterwoerths

Wadhwa, Nagpur (2009)
2. P.M. Pillai, Criminal Law, 11th Edition, p. 773, Lexis Nexis Butterwoerths Wadhwa,
Nagpur (2012)
3. Hari Singh Gour, Penal Law of India, Vol. 4, p. 3976, Law Publisher India Allahabad,
2003
4. K. Arunachalam, Inherent powers of high court, 1st edition, Law Publisher India Allahabad,
2010

LIST OF WEBSITES

1. www.manupatrafast.com
2. www.scconline.com
3. www.westlaw.in
4. www.jstor.org

4|Page
MEMORIAL ON BEHALF OF THE RESPONDENT

~LIST OF CASES~

Serial No. Cases Referred and Citation

1. Mahesh Chaudhary v. State of Rajasthan, (2009) 4 SCC 439

2. R.P. Kapoor v. State of Punjab, AIR 1960 SC 866
3. Kamaladevi Agarwal v. State of W.B. [(2002) 1 SCC 555
4. Dharam Singh v. Ami Chand, (2005) 1 RCR(Cri) 474 (P&H
5. Ajit Singh v. State of Punjab, (2004) 2 RCR(Cri) 268 (P&H)
6. Rebi Narayan Ojhavs State of Orissa 2004 Cri LJ 3645
7. State of Haryana v. Bhajanlal, 1992 Supp (1) SCC 335
8. Ranjit Singh v. State of Punjab, (2005) 1 RCR(Cri) 314 (P&H)
9. Jagdish Kumar v. State of Punjab (2006) 3 RCR (Cri) 925 (P&H)
10. State of Karnataka v. M devendrappa, 2002 Cri LJ 998
11. BS Jothi v. State of Haryana 2003- 225 OCR SC 99
12. Nga Ba Gyaw (1911) 1 UBR 105: 13 Cr LJ 471
13. Mrs. Veeda Menezes v. Yusuf Khan & Anr, 1966 AIR SC 1773
14. Vishvanath Kalubhai krishti & anr. v. State of Gujrat 2002 Cr LJ 3046
(Guj)(DB)
15. P.P v. Kang Siew Chong [1968] 2 M.L.J 39 (Raub - High Court).

16. Reg v. George Walton & Joseph Ogden, (1863) 169 ER 1399.
17. Tukaram v. Crown AIR 1950 Nag 214
18. Habibul Razzak v. Emperor, AIR 1924 AII 197
19. Indrasana v. Sia Ram 1969 Pat LJR 356

5|Page
MEMORIAL ON BEHALF OF THE RESPONDENT

~STATEMENT OF JURISDICTION~

The Respondent humbly submits this memorandum in response to the petition filed before this
Honble Court under Section 4821 of the Code of Criminal Proceeding by the petitioner. The
respondent further reserves his right to challenge the jurisdiction under which the petitioner has
approached this Honble Court.

1
S.482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to
prevent abuse of the process of any Court or otherwise to secure the ends of justice.

6|Page
MEMORIAL ON BEHALF OF THE RESPONDENT

~STATEMENT OF FACTS~

I
Kishore Kunal was a supplier of batteries and he had entered into transactions with one Arvind
Thakur the previous year. The accounts between Kishor and Arvind were settled six months
prior to the date of occurrence of the fore coming incident and Kishore Kunal owed a sum of
about Rs 1000/- to Arvind Thakur.
II
It was seen that on the date of occurrence of the incident, i.e., 24/07/16 at about 8:00 pm Arvind
Thakur with another Lalu Thakur entered into the house of Kishore Kunal and demanded from
him a sum of Rs 2000/- When Kishore Kunal stated that he would make payment only of the
amount that is due from him they started abusing him and Arvind Thakur allegedly slapped
Kishore Kunal and took away Rs. 2500/- from his upper pocket.
III
A FIR was registered in Ranchi P.S. and the police submitted charge sheet against Arvind
Thakur and Lalu Thakur before the court of the Ld. JMFC, Ranchi.Taking cognizance of the
offence, the Ld. Magistrate by order dated 01/09/17 ordered framing of charge against both
accused Arvind Thakur and Lalu Thakur under Sections 323 and 384 of the Indian Penal Code.
IV
Aggrieved by the said order both the accused have approached the High Court of Jharkhand,
Ranchi, invoking Section 482 of the Code of Criminal Procedure.

7|Page
MEMORIAL ON BEHALF OF THE RESPONDENT

~STATEMENT OF ISSUES~

I. WHETHER THE HIGH COURT UNDER SECTION 482 OF THE CODE OF CRIMINAL
PROCEDURE CAN QUASH THE ENTIRE CRIMINAL PROCEEDINGS INSTITUTED AGAINST THE
PETITIONER?

1. THAT THE PETITIONER LACKS SUFFICIENT GROUNDS FOR INVOKING SEC 482.
2. THAT INVOKING SEC 482 IN THE PRESENT PETITION IS BAD IN LAW
3. THAT THE PETITIONER IS RIGHTLY FRAMED UNDER SECTION 323.
4. THAT THE PETITIONER IS RIGHTLY FRAMED UNDER SEC 383.

8|Page
MEMORIAL ON BEHALF OF THE RESPONDENT

~SUMMARY OF ARGUMENTS~

I. THAT THE HIGH COURT UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE CANNOT
QUASH THE ENTIRE CRIMINAL PROCEEDINGS INSTITUTED AGAINST THE PETITIONER?

It is humbly submitted that the present petition is not maintainable and the Honble High
court cannot quash the entire Criminal Proceedings instituted against the Petitiner. Sec 482
provides for the inherent powers of the high court which should be used sparingly and
cautiously. It is also stated that since the evidential stage has not begun and the petitioner
has prematurely invoked Sec 482 it cannot be entertained. It is humbly submitted that this
power of Court can be invoked when there is a abuse of process of Court and to secure the
ends of justice. Since all the processes of the court were followed duly there seems to be no
abuse of process of the court. It is contended that High Court can only exercise this power
when there seems to be violation of justice i.e., prima facie the charges donot disclose the
commission of the offence.
1. Voluntarily causing Hurt- the Charge under Sec 323 IPC has been rightly framed as the
petitioner during the day of occurrence had slapped Mr Kishor Kunal and caused a bodily
Pain which comes under the ambit of Hurt.
2. Extortion- The charge under Sec 383 is rightly framed as the Petitioner exercised a fear of
injury on the victim and induced him to deliver Rs 2500 although he owed only Rs 1000
thus causing a wrongful gain to the petitioner.

9|Page
MEMORIAL ON BEHALF OF THE RESPONDENT

~ARGUMENTS ADVANCED~

II. THAT THE HIGH COURT UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE
CANNOT QUASH THE ENTIRE CRIMINAL PROCEEDINGS INSTITUTED AGAINST THE

PETITIONER?

1. THAT THE PETITIONER LACKS SUFFICIENT GROUNDS FOR INVOKING SEC 482.
1.2. It is humbly submitted that Section 482 of the Code of Criminal Procedure which is
primarily for one either to prevent abuse of the process of any court or otherwise to
secure the ends of justice. The Court at that stage would not embark upon appreciation
of evidence. The Court shall moreover consider the materials on record as a whole.2 The
offence under 383 is cognizable, bailable, non-compoundable and triable by any
magistrate3 and offence under 323 is non-cognizable and magistrate triable. Also in the
present case since FIR was duly registered, charge sheet was filed and accordingly the
Ld Judicial Magistrate First Class took cognizance there is no prima facie abuse of the
process of law.
1.3. It is humbly submitted that to secure the ends of Justice under Sec 482 and to quash the
proceedings or the complaint the Honble Court has to see that even if the charges are
taken at the face value they do not disclose the offence and there arises no question of
appreciating the facts.4 In the present case there seems to be prima facie offence
committed by the accused appellant.
1.4. Also in most of the cases in Sec 482 are involved for purpose of quashing of complaints
of investigation of FIR, of issue of process or order of cognizance by the Magistrate or
any proceedings while it is pending dealing with such petitions courts duty is to look
into very carefully the aspect as to whether the facts constitute a prima facie case.5
1.5. It is humbly submitted that this Honble Court has consistently held that the revisional
or inherent powers of quashing the proceedings at the initial stage should be exercised

2
Mahesh Chaudhary v. State of Rajasthan, (2009) 4 SCC 439 14
3
KD Gaur commentery on Indian Penal Code 2nd ed 2013, p 1273
4
R.P. Kapoor v. State of Punjab, AIR 1960 SC 866
5
K. Arunachalam, Inherent powers of high court (1st ed., 2010)

10 | P a g e
MEMORIAL ON BEHALF OF THE RESPONDENT

sparingly and only where the allegations made in the complaint or the FIR, even if taken
at their face value and accepted in entirety, do not prima facie disclose the commission
of an offence. Disputed and controversial facts cannot be made the basis for the exercise
of the jurisdiction.6 It is contented that the charges prima facie disclose the commission
of the offence.
1.6. It is humbly submitted that the order of the Magistrate cannot be challenged on the
grounds of error as the order passed by the Magistrate makes it evident that there is
proper application of mind by him before issuing the process against the accused 7
2. THAT INVOKING SEC 482 IN THE PRESENT PETITION IS BAD IN LAW.
2.1. It is humbly submitted that the present petition is not maintainable under Sec 482 CrPc.
AsIt is settled preposition of law that while exercising jurisdiction under section 482
CrPc it is not permissible for the court to act as if it was a trial Judge 8. In the present
case, the proceedings are necessary for the proving the evidences and so Sec 482 cannot
be invoked as sufficient remedy exist for the appellant.
2.2. It is humbly submitted that Being abreast of the aforesaid settled position of law and the
rules of precedence of precdents this court may find this application under Sec 482
bearing no merit as if the accused is innocent then at the stage of trial accused can have
the remedy on bringing appropriate evidence in support of his defense pela regarding his
innocence9.
2.3. It is humbly submitted that the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its whim or caprice.10 Thus the
quashing of proceedings by this Honble Court is bad in law.
2.4. It is humbly submitted that the FIR can also not be quashed as it has been repeatedly
observed by the Honble Supreme Court that the power to quash FIR would be exercised
only in rarest of rare cases11. The present case is not a rare case.
2.5. It is humbly submitted that no interference, at this stage, can be called for in exercise of
powers under Section 482 of the Code of Criminal Procedure, which has to be exercised

6
Kamaladevi Agarwal v. State of W.B. (2002) 1 SCC 555
7
Dharam Singh v. Ami Chand, (2005) 1 RCR(Cri) 474 (P&H) 5
8
Ajit Singh v. State of Punjab, (2004) 2 RCR(Cri) 268 (P&H) 10
9
Rebi Narayan Ojhavs State of Orissa 2004 Cri LJ 3645
10
State of Haryana v. Bhajanlal, 1992 Supp (1) SCC 335
11
Ranjit Singh v. State of Punjab, (2005) 1 RCR(Cri) 314 (P&H) 9

11 | P a g e
MEMORIAL ON BEHALF OF THE RESPONDENT

cautiously and sparingly especially when, the case is at the evidence stage and only after
concluding the evidence, it has to be determined by the learned trial Court12. Since the
proceedings has not been initiated and the evidences are not perused the present petition
is not maintainable.
2.6. It is humbly submitted that in a quashing proceeding, it is not, within the ambit of the
powers of the High Court, under section 482, Cr. P.C., to determine the truth, veracity,
correctness or otherwise of the accusations made in the FIR or a complaint. In the case
at hand too, therefore, this court has to proceed on the assumption that the allegations,
made in the complaint, are true and, then, determine whether the contents of the
complaint, if assumed to be true, disclose commission of any offence under the Indian
Penal Code.
2.7. Quashing of criminal proceedings is impermissible unless on analysis of the evidence
on record (case diary) the court is satisfied about nonexistence of a prima facie case for
that it would be improper to make meticulous analysis of the case before the trial to find
out whether the case would end in conviction or acquittal13
2.8. It is humbly submitted that this Honble Court has refused the exercise of the inherent
powers to quash the proceedings on the ground that Sec 320 CrPc is bar to exercised of
such Inherent powers14. Sec 320 includes Sec 323. It is contended that when there is a
statutory bar, power cannot be on the exercised under Sec 482 in the cloak of an appeal
in disguise.
3. THAT THE PETITIONER IS RIGHTLY FRAMED UNDER SECTION 323.
4.1.Sec 323 states that-
Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall
be punished with imprisonment of either description for a term which may extend to
one year, or with fine which may extend to one thousand rupees, or with both.
3.2. It is humbly submitted that the essential ingredients of the offence has been duly covered
by the charge framed.
1) hurt, as described in S 319 must be actually caused and

12
Jagdish Kumar v. State of Punjab (2006) 3 RCR (Cri) 925 (P&H) 7
13
State of Karnataka v. M devendrappa, 2002 Cri LJ 998
14
BS Jothi v. State of Haryana 2003- 225 OCR SC 99

12 | P a g e
MEMORIAL ON BEHALF OF THE RESPONDENT

2) it must be caused with the intention of causing it or with knowledge of its being
likely to be caused.15
3.3. It is humbly submitted that the Petitioner has been charged under Sec 323 IPC which
talks about voluntarily causing hurt. It is contended that hurt is defined under Sec 319
which refers to the bodily pain caused by one person to another. It is alleged that the
petitioner had slapped Mr. Kishor Kunal which amounts to bodily pain caused.
3.4. It is also contended that prima facie there seems to be hurt caused as the petitioner had
slapped Mr. Kishor Kunal with the intention and knowledge that this could cause a bodily
pain as the petitioner before slapping had abused and was in rage on Mr. Kishor Kunal.
The intent to cause hurt may be presumed from the nature of the hurt caused and the
circumstances under which it was caused.16
3.5. It is humbly submitted that 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 with 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 complain of
the harm. It cannot be judged solely by the measure of physical or other injury the act
causes.17
3.6. It is humbly submitted that since the slap was preceded by a abusive quarrel between the
Petitioner and Mr. Kunal Kishor which certifies his act of slapping to be punishable under
Sec 32318
3.7. It is contended that the degree or severity of the pain is not a material factor to decide
whether this section will apply or not. A blow or a fisticuff will come within the meaning
of the causing bodily pain and hence will be covered under this section.19 Thus the charge
of 323 is valid and constitutes a prima facie offence.

15
R A Nelsons Indian Penal code, vol. 3, (9th ed., 2003)
16
Nga Ba Gyaw (1911) 1 UBR 105: 13 Cr LJ 471
17
Mrs. Veeda Menezes v. Yusuf Khan & Anr, 1966 AIR SC 1773
18
Vishvanath Kalubhai krishti & anr. v. State of Gujrat 2002 Cr LJ 3046 (Guj)(DB)
19
KI Vibhute, PSA pillais Criminal Law (10 ed., 2010)

13 | P a g e
MEMORIAL ON BEHALF OF THE RESPONDENT

4. THAT THE PETITIONER IS RIGHTLY FRAMED UNDER SEC 383.

4.1. Section 383 states that: -
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
4.2. It is humbly submitted that the ingredients of extortion are
1) the extortioner puts or attempts to put any person in fear of injury, the intention is
to commit extortion.20
2) Dishonestly induces to deliver property.
4.3. It is humbly submitted that in the present case the accused had put the victim under a fear
of injury by abusing and slapping him and it can be reasonably presumed that any person
could come under fear after someone slaps and abuses him.
4.4. It is humbly submitted that the injury here is defined in Sect 44 IPC which states harm
not only to any person in body or property but also in mind or reputation.
4.5. It is humbly submitted that dishonestly inducing to deliver property as defined in Sec 24
IPC postulates wrongful gain to one or wrongful loss to another. It is not only sufficient
under section 383 that there should be wrongful loss caused to one individual but the
person putting that individual in fear of injury must have the intention that wrongful loss
should be caused.21
4.6. It is humbly submitted that the threat is made with the object of exacting payment of
money that is not due, it is an abuse of the exercise of that power and is therefore illegal.22
In the present case the petitioner demanded Rs 2000 even if he knew that Mr Kunal
Kishor owed him only Rs 1000.
4.7. It is humbly submitted that the fear of injury caused was of a real nature, so as to unsettle
the mind of the man of Mr. Kunal Kishor.23

20
KD Gaur Commentery on Indian Penal Code.1273 (2nd ed 2013)
21
R.D. Indian Penal code, 1273 (32nd ed., 2010)
22
P.P v. Kang Siew Chong [1968] 2 M.L.J 39 (Raub - High Court).
23
Reg v. George Walton & Joseph Ogden, (1863) 169 ER 1399.

14 | P a g e
MEMORIAL ON BEHALF OF THE RESPONDENT

4.8. It is humbly submitted that when someone puts the other in fear of instant hurt for
extracting annual remuneration he commits the offence of extortion.24 Thus in the present
case the petitioner induced fear for the extraction of his due money.
4.9. It is humbly submitted that the inducement of the property was by putting a fear of
injury.25 Before a person can be said to put any person into fear of any injury of that
person, it must appear he has held out some menace to do or omit to do what he is in
justice bound to do in days to come26

24
Tukaram v. Crown AIR 1950 Nag 214
25
Indrasana v. Sia Ram 1969 Pat LJR 356
26
Habibul Razzak v. Emperor, AIR 1924 AII 197

15 | P a g e
MEMORIAL ON BEHALF OF THE RESPONDENT

~PRAYER~

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honorable Court may be pleased to adjudge and declare:

1. That the present petition is not Maintainable

2. That this Honble Court Cannot Quash the Proceedings as the charges prima facie disclose
the commission of the offence.

And pass any such order, writ or direction as the Honorable Court deems fit and proper,
for this the petitioners shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

SD/-

COUNSEL FOR THE RESPONDENT.

16 | P a g e