(State v. Aarushi & Anr.). The prayer to quash the charge-sheet dated 04.01.2021, arising out of
Case Details
Court No. - 72 Case :- APPLICATION U/S 482 No. - 39443 of 2022 Applicant :- Aarushi And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kavish Suhail Counsel for Opposite Party :- G.A. Hon'ble Mrs. Sadhna Rani (Thakur),J. Heard learned counsel for the applicants, learned counsel for opposite party no.2 and perused the record. This application has been moved by the applicants with a prayer to quash the entire criminal proceedings of Case No.1991 of 2021 (State Vs. Aarushi & Anr.). The prayer to quash the charge-sheet dated 04.01.2021, arising out of F.I.R. No.1928 of 2019, under Sections 386, 506 I.P.C. and 66D of I.T. Act, 2000, Police Station Kavi Nagar, District Ghaziabad and cognizance order dated 18.01.2021 as well as summoning order dated 08.06.2022 are also made.
Legal Reasoning
As per F.I.R. lodged by the opposite party no.2 dated 28.09.2019, by sending messages on whatsapp, the applicant no.1 was demanding an amount of Rs.2,00,00,000/- from the first informant threat was extended to encounter him otherwise. The opposite party no.2 was being harassed for this amount since last one month and efforts were made to extort this money from him forcibly. The name of applicant no.2 came into light during investigation that these messages were being sent by the applicant no.1 to the opposite party no.2 upon the instructions of his father, applicant no.2. Opposite party no.2 is said to have denied to pay any amount to the applicant no.1. It is submitted by the learned counsel for the applicants that applicant no.1 is on bail. Misc. Writ Petition No. 8947 of 2022 filed by the applicant no.1 was rejected by this Court vide order dated 21.09.2020 and this Court declined to interfere with the impugned FIR. It is further submitted that admittedly, as per FIR, no amount has been delivered by the opposite party no.2 to the applicants and by referring judgments Isaac Isanga Musumba Vs. State of Maharashtra, AIRONLINE 2013 SC 231 and Dhananjay Alias Dhananjay Singh Versus State of Bihar and Another, (2007) 14 Supreme Court Cases 768, it is argued that for the offence of extortion 'delivery' is must and without delivery an offence under Section 384 I.P.C. could not be said to be made out. It is further argued that applicant no.1 never made confession to the police that she had sent the whatsapp messages to the opposite party no.2 and that too on the instructions of her father applicant no.2. Otherwise also, any statement made before the police officer is inadmissible in evidence. It is also argued that alleged whatsapp chats were typed by the opposite party no.2 himself since he had the applicant no.1's phone with him. Perusal of the whatsapp chats would reveal that no criminal intimidation had occurred. There is not even a single witness of the incident. In fact, first information report was lodged by the opposite party no.2 upon the pressure of Gen. V.K. Singh, MP of Ghaziabad, with whom applicant no.2 had a fall out in 2018. Prior to the incident, for a long time the applicant no.2 was a political consultant of Gen. V.K. Singh and owing to the above since 2019 nearly 15 FIRs have been lodged against applicant no.2 in District Ghaziabad to harass and pressurize him and his family wherein he has been enlarged on bail. Applicant no.1 was granted bail in the present FIR but the very next day her name was implicated in another FIR bearing FIR No. 2007/19, P.S. Kavi Nagar, Ghaziabad. Even in that FIR applicant no.1 has secured bail. From the FIR itself no offence can be said to be made out against the applicants. Hence, the prayer is made accordingly. Learned counsel for the opposite party no.2 opposed the prayer and submitted that in the FIR there are specific allegations against the applicants. Applicant no.1 used to send whatsapp messages to the opposite party no.2 on the instructions of applicant no.2 for extorting money otherwise threat of his encounter is said to have been given. If we go through the judgments placed by the counsel for the applicants before the Court, it is true that in judgments Isaac Isanga Musumba Vs. State of Maharashtra (supra) and Dhananjay Alias Dhananjay Singh Versus State of Bihar and Another (supra), it has been held that for the offence of extortion "delivery" is must and admittedly in the present case in reply to the threats/ demands of the applicants on whatsapp, nothing has been paid by the opposite party no.2 to the applicants. If we go through the provisions of section 386 of I.P.C., this section runs as under:- "386. Extortion by putting a person in fear of death or grievous hurt.— Whoever commits extortion by putting any person in fear of death or of grievous hurt o 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." This section applies at the stage where the extortion has been committed and admittedly as per above rules as the delivery of the property/ rupees has not taken place thus the commitment of the offence of extortion would not be said to be completed. In this regard it is apposite to mention the view of the Apex Court in judgment Radha Ballabha and others vs. State of U.P., 1995 AIR SCW 2634, whereby the Apex Court held that in a case of kidnapping when no ransom was extorted conviction of the accused would be proper under Section 387 of I.P.C. and not under section 386 I.P.C. If we go through section 387 I.P.C. in this regard, this section runs as under:- "387. Putting person in fear of death or of grievous hurt, in order to commit extortion.—Whoever, in order to the committing of extortion, puts or attempts to put 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 seven years, and shall also be liable to fine." This section attracts when a person is put in fear of death or of grievous hurt in order to commit extortion and in the present case the opposite party no.2 is alleged to be given a threat of his encounter if he does not pay Rs.2,00,00,000/- to the applicant no.1 and applicant no.1 is said to have sent whatsapp messages to this effect to opposite party no.2 on the instructions of applicant no.2. As per facts of the judgment Radha Ballabha and others vs. State of U.P. (supra), when a child was kidnapped and ransom was demanded for returning the child, ransom was not paid by the father of the child, even then the offence of kidnapping was found to be committed by the accused persons. The Apex Court by setting aside the conviction under Section 386 I.P.C. ordered the accused to be convicted under Section 387 I.P.C. The same case is here, there is allegation of demanding Rs.2,00,00,000/- from the opposite party no.2. The opposite party no.2 is said to be living in terror since last one month prior to the lodging of FIR on the basis of receiving whatsapp messages. Whether these messages were sent by the applicant no.1 on the instructions of applicant no.2 or whether these messages were typed by the opposite party no. 2 himself is a matter of trial, but there is allegation of demanding Rs.2,00,00,000/- otherwise the threat of facing encounter is said to be extended thus, prima facie, offence under Section 387 I.P.C. would be said to be made out and for this section the committal of extortion is not needed only in order to the committing of extortion a person is put in fear of death or of grievous hurt is needed, which is enough to constitute an offence under Section 387 of I.P.C. The allegations of offence under sections 506 I.P.C. and 66D of I.T. Act are there in the FIR, whether offence under sections 506 I.P.C. and 66 D of I.T. Act, 2000 have been made out against the applicant or not would be seen after the evidence of the parties but at this stage as the cognizance under Section 386 of I.P.C. is found to be erroneous, hence, the summoning order dated 18.01.2021 is liable to be quashed. Impugned order dated 18.01.2021 is hereby quashed. The court concerned is directed to pass a fresh cognizance order on the basis of the above discussion. The application under Section 482 Cr.P.C. is disposed of, accordingly. Order Date :- 16.3.2023 Radhika Digitally signed by :- Digitally signed by :- RADHIKA VISHWAKARMA RADHIKA VISHWAKARMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad