Section 397 IPC: Mere Exhibition, Brandishing Or Holding Weapon Openly By Offender To Threaten & Create Fear Or Apprehension In Mind Of Victim Is Sufficient: Supreme Court

The Supreme Court has observed that mere exhibition brandishing or holding a weapon openly by offender to threaten and create fear or apprehension in the mind of the victim is sufficient to constitute an offence u/s 397 IPC.

The bench of CJI NV Ramana, Justices AS Bopanna and Hima Kohli was considering an appeal assailing Madhya Pradesh High Court's order of upholding the conviction by trial court u/s 392/397 of IPC and Sections 11/13 of Madhya Pradesh Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act ("Act").

The issue before the Top Court was:

• Whether charge u/s 397 IPC was sustainable since the appellant had contended that the firearm had not been put up to use
• Would charge u/s 397 IPC be sustainable if there was no material or evidence to indicate that accused appellant had used the firearm irrespective of occurring of the alleged incident

The bench in Ram Ratan v State of Madhya Pradesh partly allowed the appeal while upholding the conviction of the appellant u/s 392 IPC and setting aside the conviction u/s 397 of IPC and Sections 11/13 of Madhya Pradesh Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act. It thus observed,

"From the position of law as enunciated by this Court and noted above, firstly, it is clear that the use of the weapon to constitute the offence under Section 397 IPC does not require that the 'offender' should actually fire from the firearm or actually stab if it is a knife or a dagger but the mere exhibition of the same, brandishing or holding it openly to threaten and create fear or apprehension in the mind of the victim is sufficient. The other aspect is that if the charge of committing the offence is alleged against all the accused and only one among the 'offenders' had used the firearm or deadly weapon, only such of the 'offender' who has used the firearm or deadly weapon alone would be liable to be charged under Section 397 IPC."

Factual Background

A complaint was lodged by Rajesh Meena on June 27, 2012 alleging that on the intervening night of June 26/27 June 2012 while he was sleeping in the hut constructed in the field to guard the crops at 2:30 AM, the appellant ("Ram Ratan") along with Raju and Chotu came to him and woke him up. Raju was having a gun with him and he pointed the same towards the complainant's chest and demanded to part with the money. Since the complainant did not have any money, the accused(s) took the key of his motorcycle and forced him to sit on the motorcycle along with them. Since the motorcycle got punctured, the accused(s) compelled the complainant to get down and took away the same.

The complainant lodged the complaint and on completion of investigation, the police filed the charge sheet u/s Sections 392/397 of IPC and u/s 11/13 of Madhya Pradesh Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act ("Act").

On February 26, 2013 the trial court framed charges under Sections 392/397 of IPC and Sections 11/13 of MPDVPK Act, 1981 against the appellant and Chotu, while an additional charge under Section 25 (1­B) (a)/27 of the Arms Act was framed against the other co ­accused namely, Raju.

On analysing the evidence, the Trial Court opined that the appellant and his co­ accused had indulged in the incident and therefore held the charge to be proved and accordingly handed down the sentence and conviction.

Assailing the Trial Court's judgement, the appellant and the co accused approached the High Court wherein they contended that the case had been falsely alleged against them and that the charge u/s 397 of IPC could not be sustained. They further contended that the firearm even if it was proved to be carried, had not been used and as such the charge under Section 397 IPC would not lie.

After re appreciating the evidence in detail, the High Court upheld the judgment passed by the trial court convicting the appellant and sentencing him in the manner as has been done.

Aggrieved, the appellant approached the Top Court.

Submission Of Counsels

Advocate Shishir Kumar appearing for the appellant while referring to the Top Court's judgement in Ganesan vs. State Rep. by Station House Officer Crl. Appeal No.904 of 2021 submitted that charge u/s 397 of the IPC would not be sustainable since the gun had not been used and the conviction could be sustained only if the 'offender' used any deadly weapon while committing robbery.

It was his further contention that charge under Section 397 IPC would not be sustainable against the appellant herein since there was no serious allegation or proof of the appellant having used any weapon much less deadly weapon even if the incident of robbery which occurred was held to be proved against the appellant.

Advocate Sunny Choudhary appearing for the State submitted that when the expert had opined that the gun was in working condition, the actual use of the firearm by firing from it was not required but the exposure of the weapon so as to create fear in the mind of the victim was sufficient to prove the charge under Section 397 IPC.

Supreme Court's Analysis

The bench in the judgement authored by Justice AS Bopanna referred to the Top Court's judgements in Shri Phool Kumar vs. Delhi Administration (1975) 1 SCC 797, Dilawar Singh vs. State of Delhi (2007) 12 SCC 641 and Ganesan vs. State Rep. by Station House Officer Crl. Appeal No.904 of 2021.

With regards to the contention of petitioner's counsel that charge u/s 397 IPC would not be sustainable as there was no material or evidence to indicate that accused appellant had used the firearm irrespective of occurring of the alleged incident, the bench said that benefit of the interpretation raised on the scope of Section 397 IPC to hold the aggressor alone as being guilty, would be available to the appellant if there is no specific allegation against him.

"Though the above would be the effect and scope of Section 397 IPC as a standalone provision, the application of the same will arise in the totality of the allegation and the consequent charge that will be framed and the accused would be tried for such charge. In such circumstance, in the teeth of the offence under Section 397 IPC being applicable to the offender alone, the vicariability of the same will also have to be noted if the charge against the accused under Sections 34, 149 IPC and such other provisions of law, which may become relevant, is also invoked along with Section 397 IPC. In such an event, it will have to be looked at differently in the totality of the facts, evidence and circumstances involved in that case and the provisions invoked in that particular case to frame a charge against the accused. In the instant case, the charge under Section 34 IPC was not framed against the appellant nor was such an allegation raised and proved against the appellant. Hence, benefit of the interpretation raised on the scope of Section 397 IPC to hold the aggressor alone as being guilty, will be available to the appellant if there is no specific allegation against him," the bench said in this regard.

On the aspect of conviction u/s 392 IPC, the bench opined that,

"It is no doubt true, that the appellant had participated in the offence of committing robbery since ultimately the motorcycle was hidden at a place which was known to the appellant and the property seizure memo indicates that the motorcycle was recovered at the instance of the appellant that certainly constitutes an offender under Section 392 IPC."

Accordingly the bench while partly allowing the appeal, set aside the judgement to the extent it convicted the appellant u/sSection 397 IPC read with Sections 11/13 of MPDVPK Act, 1981 and sustained the appellant's conviction u/s 392 IPC.

Case Title: Ram Ratan v State of Madhya Pradesh| Criminal Appeal No.1333 Of 2018

Coram: CJI NV Ramana, Justices AS Bopanna and Hima Kohli

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