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Delhi District Court

Cbi vs . Lalit Aggarwal & Ors. on 8 May, 2009

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     IN THE COURT OF SHRI SURINDER S. RATHI: ADDL. SESSIONS JUDGE
       FAST TRACK COURT: ROOM NO.272 : TIS HAZARI COURTS : DELHI

                                                               SC NO. 02/09
                                                  RC SIB/2002/E/0002/SIU-XI
                                   U/s. 364A/347/354/365/384/467/120 B IPC
                                             CBI VS. LALIT AGGARWAL & Ors.
8.5.2009

ORDER

By this order I shall dispose off submissions made by CBI as well as the defence on the point of framing of charge under Additional Offences U/s 364 -A IPC.

Background of the matter is that FIR RC SIB/2002/E/0002/SIU-XI was registered by CBI on 4.3.2002 on the compliant of Ms. Joelie Clark and Ms. Joanna Hoff forwarded by Metropolitan Police of Scotland Yard, London on 29.6.2002. After registration of the FIR qua kidnapping for ransom, extortion and molestation etc, chargesheet dated 5.6.2002 was filed initially against 7 accused persons namely (1)Liakat Ali @ Mike , (2) Syed Asim Ali (3) Mohd. Mubin @ Noori,(4) Atul Jain , (5) Vikas Jain, (6)Ashok Bhola and (7) Naresh Kumar . While accused Lalit Aggarwal , Syed Sadakat Ali @ Chiku and Afzal Baig were kept in column no.2 as investigation qua them was pending. Subsequently a supplementary chargesheet was filed against these three accused persons in addition to accused Vijay Goel taking the total list of accused No.11 persons.

After completion of formalities U/s 207 Cr.P.C , Ld. CMM, Delhi committed this case to Sessions for trial. Ld. District and Sessions Judge, Delhi assigned the trial of this case to the court of Sh. Dinesh Dayal, the then Ld. ASJ.

Contd/...

After hearing the accused persons on the point of charge vide its detailed order dated 10.11.2003, Ld. Trial Court discharged accused Liakat Ali @ Mike , Sayed Asim Ali @ Chiku and Ashok Bhola. Ld. Trial Court also opined that since the demand of ransom after the kidnapping of the two ladies was not communicated to the family members of the victims, no case of framing of charge is made out U/s 364 A IPC. Ld. ASJ opined that out of the material available , charges under offences other than section 364 A IPC are made out.

He subsequently framed charges against different accused persons and sent back the trial file to the court of Ld. CMM, Delhi since in the absence of charge U/s 364 A IPC, the remaining offences were triable by Court of MM.

This order of LD. ASJ was not challenged by the CBI. However, accused Vikas Jain who was charged for commission of offence U/s 347/364/365/384/467/471 r/w 120 B IPC challenged the order of LD. ASJ dated 10.11.2003 and subsequent framing of charges against him. Hon'ble Delhi High Court which its order dated 13.12.2006 discharged him. Order of Hon'ble High Court was challenged by CBI by preferring a SLP but admittedly same was not admitted by Hon'ble Supreme Court.

As per orders of Ld. ASJ dated 10.11.2003, the trial proceeded before Ld. CMM, Delhi and thereafter before Ld. ACMM, Delhi. 5 witnesses out of total 52 witnesses were examined during PE. At that juncture on 7.5.2007, Ld. Public Prosecutor for CBI moved an application with a prayer that in terms of Hon'ble Supreme Court's Contd/...

judgment in case titled Maleshi Vs. State of Karnataka 2004 III, AD Crl. SC 6333 offences of section 364 A IPC is also made out against the accused persons and as such that the case be recommitted to Sessions. Notice of that application was given to all the accused persons who filed their written replies. Upon hearing them vide his detailed order dated 7.2.2009, Ld. ACMM (North) allowed the application of CBI and recommitted this case U/s 323 Cr. P.C to Sessions for trial. Upon re-committal , the trial was assigned to this court by Ld. District & Sessions Judge, Delhi.

Admittedly no separate revision was preferred by either of the accused against the order of LD. ACMM dated 7.2.2009 of recommittal U/s 323 Cr. P.C. Now this court is supposed to hear arguments of prosecution as well as defence on the point of framing charge U/s 364 A IPC. The defence as well as prosecution were invited to make submissions on the same.

I have heard arguments Ld. Spl. PP Sh. Rajan Dahiya for CBI., LD. Counsel Sh. G.P.Thareja and Sh. Yogesh Verma advocate for accused Atul Jain, Ld. Counsel Sh.Anupam S. Sharma Advocate for accused Mubbin and Sadakat Ali, Ld. Counsel Sh. Rashid Hashmi for accused Afjal, Ld. Counsel Sh. Rajesh Singhla for accused Vijay Goel and Ld. Counsel Sh. Manoj Sharma Advocate for accused Naresh Kumar at length and I have perused the case file.

Brief factual matrix of the case is that victims Ms. Joelie Clark and Ms. Joanna Hoff arrived in India as a member of a Study Team of Adelaide University, Australia in the year 2001. During their visit to Rajasthan they stayed in Jaipur at Ever Green Guest House. There accused Sayed Sadakat Ali @ Chikkoo gained their proximity by Contd/...

befriending them . He made them agree for an excursion in the city and took them around Jaipur with co-accused Mohd. Mubbin @ Noorie . Accused persons made them agree to visit shop owned by Lalit Aggarwal @ Mike @ Mikesh. At this shop of accused Lalit Aggarwal in Jaipur, both the victims were detained for around 7 hours and their passports and credit cards were taken away. They were compelled and made to join a sham exercise of Jewelery Export despite their unwillingness. A parcel purportedly containing precious jems was prepared upon which they were compelled to write their names and other particular like their passport details etc. and a fabricated receipt of sales of jems was made in the name of Qualas Gem, Chandni Chowk, Delhi. All the three accused brought the victims to Delhi in a Cielo Car against their wishes.

In Delhi they were taken to Gol Dak Khana and the parcel prepared by the accused was dispatched to main post office in London. They made the two girls to stay in already booked rooms in Arpit Hotel by withaid of co- accused Hotel Manager Naresh Kumar but without making entries. The victims were told by the accused Mike that the parcel sent by them have been intercepted by customs and now until and unless genuine cash receipts of purchase of precious stones is produced legal action can be taken against them. Victims were made to accompany to Jewelery Shops with coaccused Ashok Bhola and were taken to accused Atul Jain's Jain Jewllers , Karol Bagh & accused Vikas Jain's Popular Jewllery, Karol Bagh . There the transactions were made from the credit card of Ms. Joanna Hoff. One transaction was also made related to a jewelery shop by the name of Zevrat owned by accused Contd/...

Vijay Goel . Credit Card of victim Ms. Joelie Clark was also swiped for a sum of Rs. 1 ,50,000/- at Popular Jewelery of Accused Vikas Jain. Money was credited but no jewelery was delivered to the victims.

Accused persons who were apparently acted in tandem under a conspiracy were not satisfied yet. They pressurised Ms. Joelie Clark to arrange to another 10,000/- British Pounds. She was constrained to portray before her husband that she had met with a road accident and she needs money to avoid criminal action. Her husband transferred 1950 Australian Dollar in their joint account which were withdrawn and money was taken by accused. Another sum of 600 US dollars was transferred through Western Union Money Transfer to accused Cheeku. Likewise Victim Joanna Hoff also had to portray a story and as such she was made to withdraw Rs. 50,000/- from her mother accounts apart from Rs. 50,000/- withdrawn from his mother's credit card. She was constrained to encash travelling cheques worth 400 British pounds which were taken by accused Mike. She was compelled to ask for 10,000/- British Pounds from her father of which her father sent 6,000 Pounds from Western Money Transfer. In this manner accused persons extracted around Rs. 14 lacs from the victims while they were held in captivity.

Finally the victims were taken to the airport and made to board a flight to London on 20.11.01 on tickets booked by Accused Afzal Baig. On reaching Hethrow Airport they reported the matter initially to Australian High Commission and then to Scotland Yard Police. The Scotland yard recorded their statement and forwarded a complaint dated 24.01.2002 of Ms Joelie Clark to CBI which led to registeration of this case.

Contd/...

Now the issue before this Court is as to whether CBI is well within its rights to request this Court to reframe the charge under additional offences U/s 364 A IPC or not. The recommittal in hand is U/s 323 Cr.P.C The first objection taken by the defence in this regard is that once Ld. ASJ vide his order dated 10.11.03 has already opined that the offences of Section 364 A IPC is not made out, same offences cannot be invoked on the asking of CBI. The defence also challenged the decision of LD. MM in invoking Section 323 Cr. PC for recommitting this case despite the above order of Ld. ASJ. It would be appropriate to have a glance at Section 323 Cr. PC at this juncture. Section 323 Cr. P.C. runs as under :

Procedure when, after commencement of inquiry or trial, Maginstrate finds case should be committed.

If, in any inquiry into an offence or a trial before a Magistrate. it appears to him at any stage of the proceedings before signing judgement that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.

The plain reading of the section shows that through this enactment Parliament intended to arm a trial magistrate with an additional opportunity to commit a case to Sessions during the course of trial, if the circumstances so demand. This enactment is in addition to Section 209 Cr. PC and can be exercised by a Magistrate at any any time before signing of judgment. As such technically speaking, once Criminal Procedure Code provides for committal of a case to Sessions during the course of trial, per se no fault can be found in the same.

However in the case in hand, the situation is a bit Contd/...

different. Here Ld. ACMM has invoked Section 323 Cr. PC in addition to invocation of Section 209 Cr. PC previously. As such the legal question which arises for consideration before this court is whether Section 323 Cr. PC can be taken recourse to after Section 209 Cr. PC has already been availed off.

As regards the plea of the defence that after taking recourse to Section 209 Cr. PC and Section 323 Cr. P.C cannot be invoked, it is observed that in an almost identical matter Hon'ble Madhya Pradesh High Court ruled that it is legal and permissible. In case titled, "

Bondal and others Vs. State of Madhya Pradesh,1983 Crl. L.J.,607" Hon'ble High Court ruled that even after a case was initially committal U/s 209 Cr. P.C and was remanded back by Sessions, Magistrate has ample powered U/s 323 Cr. P. C to recommit, if the facts and circumstances so demand as observed during the course of trial. As such in view of this case law no flaw is can be found in invocation of Section 323 Cr. P.C by Ld. ACMM in the case in hand.

It is not the case here that after Ld. ASJ sent the case back before Ld. CMM on 10.11.03, the lower Court immediately sent it back by invoking Section 323 Cr. P.C. He rather abide by the order of Ld. ASJ and proceeded with trial. The order in hand of Ld. ACMM dated 07.02.09 of recommittal was passed after a gap of more than 5 years and after completing examination of four witnesses including complainant Ms. Joelie Clark apart from examining detectives of Scotland Yard.

Other plea of defence herein is that facts of this case does not show prima facie commission of offence U/s 364-A IPC. Record shows that initially CBI charge sheeted the accused persons for Contd/...

commission of offences including 364 -A IPC but vide his order dated 10.11.03 LD. ASJ opined that in the facts and circumstances of charge U/s 364-A IPC is not made out. Order of LD. ASJ cites two reason for arriving at this decision.

First reason is that demand of money from person kidnapped or abducted does not qualify, " Demand of Ransom" and ransom should have been demanded from the person other than the person kidnapped.

Secondly, that the person kidnapped or abducted or the family members from whom the money is demanded should be aware of kidnapping or abduction. LD. ASJ opined that since the relatives of the ladies from whom the money was demanded and taken were not aware of their abduction, Charge U/s 364 A is not made out.

The logic and reasoning arrived at by Ld. ASJ might hold good as far as the legal interpretation of " Kidnapping for ransom according to Netra Pal Vs. The State (NCT of Delhi) (2001 Crl. L.J. 1669) is concerned, however after the landmark full bench Judgement of Hon'ble Supreme court in "Malleshi Vs. State of Karnatka,2004 III AD (Cr.) S.C. 633"

came and it was ruled and rightly so that in order to invoke Section 364 A IPC even it the demand of ransom is conveyed to the victim, it qualifies, "

demand or ransom". It lays that it is not necessary that money should be demanded from the victims or person who actually pays. Hon'ble Supreme Court in the latter case further ruled that once the demand of ransom is conveyed to the person abducted and then even if before the money is paid or the demand is conveyed to other family members, accused are arrested, facts qualify of invocation of Section 364 A IPC. As Contd/...

regards the plea of the defence that the two ladies were not aware of their abduction and were not physically constrained during the entire episode, it is observed that the definition of abduction as per Section 362 IPC does not provide that use of force is a pre requisite . It rather provides that even if a person is induced go from any place by deceit or inducement it tantamounts to abduction.

Section 362 reads as under:-

362 Abduction-Whoever by force compels or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Moreover as far as the issue of abduction simplicitor is concerned Ld. ASJ has already opined that Section 365 IPC is made out against accused and charge U/s 365 IPC apartfrom other offences was framed. Since finding of Ld. ASJ and consequent framing of charge U/s 365 IPC was not challenged it has become absolute and binding on existing 7 accused persons.

Full bench of Hon'ble Supreme court judgement Malleshi Vs. State of Karnatka,2004 III AD (Cr.) S.C. 633 clarified the position in this regard and now there is enough material on record to show that around Rs.14 lacs was shelved out of the victims by deceit and coercion by cooking a false story while they were made abducties and were forcefully made to travel from Delhi to Jaipur and were made to live in Arpit Hotel in a pre meditated and designed conspiracy. As such on this aspect I have no hesitation in concluding that prima facie charge U/s 364 A IPC is also made out Hence in view of the discussion I do not find any fault in the orders of Ld. ACMM dated 07.02.09 and it is not the case of judicial Contd/...

indiscipline as tried to be passed off by the defence.

I also do not find any logic whatsoever in the endeavour of defence in claiming that the prosecution is barred by principle of " resjudicata". This principle which is primarily applicable in civil laws cannot be made applicable in serious criminal offences as endeavoured by the defence. At the cost of repetition it is observed that sheer introduction of Section 323 by the Parliament in Criminal Procedure Code itself signifies with the same Magistrate who can invoke Section 209 Cr. P.C initially can himself invoke Section 323 Cr. P.C. to commit the same case at a later stage. He is not estopped or barred by resjudicata the endeavour of the defence to import the principal of resjudicata is neither logically nor procedurally correct. This plea of defence is ultra vires to Criminal Procedure Code.

Another plea taken by the defence is that they were not given ample opportunity of being heard by Ld. ACMM before recommittal of this case to Sessions. This plea is found to be factually incorrect as record shows that defence had filed written replies to the applications moved by CBI.

For the forgoing reason I have not hesitation in concluding that the material available on record, as appreciated in the light of Maleshi Judgement of Hon'ble Supreme Court,makes out prima facie case of framing of additional charge under Offence U/s 364 A IPC against the accused persons.

Abduction or kidnapping for ransom is a continuing offences, which continues till such time the demands of ransom are being raised and payments are made in pursuance of such demands. Offence Contd/...

U/s 364 A IPC is made out against accused persons other than Sayed Sadakat Ali, Mubin and Lalit Aggarwal since accused Atul Jain, Vijay Goel, Naresh Kumar and Afzal Baig who booked tickets for return journey were acting in tandem under the same conspiracy and they played important role in extracting hefty ransom of Rs.14,00,000/- from the victims.

The law on framing of charge is now well settled. In Rajbir Singh Vs. State of UP 2006 Crl. L.J 2458 (SC) Hon'ble Supreme Court ruled, " At the stage of framing of charge court is not to supposed to see whether there is sufficient ground for the conviction of accused or whether trial is sure to end in his conviction".

In State of Orissa Vs. Saroj Sahoo 2006(1) Apex Criminal 63 (SC) Hon'ble Supreme Court observed, " At the stage of framing of charge court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused . For this limited purpose Court can evaluate material and documents on record but it cannot appreciate evidence. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."

As such the charge is being recasted qua 120 B IPC and addl. charge U/s 364-A IPC is being framed.

At this stage charge is recasted/reframed and read over and explained to accused persons and accused persons plead not guilty and claimed trial.

Now to come up for PE on 27.05.09 and 28.05.09.

(SURINDER S. RATHI) ASJ:FTC:DELHI 8.5.09 Contd/...

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