Delhi District Court
Shri Deepak Kumar vs State on 24 February, 2015
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Revision No. 38/15
ID No. 02406R0273602014
Shri Deepak Kumar
S/o Shri Jagdish Singh
R/o 571, Devali Village,
Delhi. . . . . Revisionist
versus
State . . . . . Respondent
__________________________________________________________
Date of Institution : 20.10.2014
Date of receipt of file by way of
transfer in this court : 10.02.2015
Date when arguments were heard : 18.02.2015
Date of Order : 24.02.2015
JUDGMENT :
The present Criminal Revision filed under Section 397 of The Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) seeks to challenge the correctness, validity or propriety of impugned order dated 21.07.2014 passed by Ld. MM10, SouthEast, Saket Courts, New Delhi in the matter of State Vs. Deepak Kumar, bearing FIR No. 296/06 under Section CR No. 38/15 1 of 8 323/342/384/419/420/466/468/471 IPC PS Greater Kailash, New Delhi.
2. Prosecution case in brief is that on 19.08.2006, complainant Kapil Kumar was at G. K., M Block Market in the evening. At about 6.38 pm, he received a call on his mobile number 9810624949 from mobile number 9911443776 and the caller of the phone introduced himself as Insp. Surender, SIU Branch of Delhi Police. The caller of the phone informed the complainant that complaint against him was pending and therefore, on the pretext of the said complaint, asked the complainant to meet him outside the shop named Mocha. At about 8.00 o'clock, while complainant was standing in front of the shop, his phone rang and while he was looking at the phone, one person came near him and introduced himself as Insp. Surender. Thereafter, the said person took the complainant to his WagonR car on the pretext of showing him documents. As soon as, the complainant sit in the car, the said person locked the car through central locking system and informed the complainant that remaining staff was sitting in another car, which was behind them. He also informed the complainant that he was under
arrest. Complainant enquired about the reason for being in arrest, the said person slapped him and demanded Rs.50,000/ from him otherwise, was threatened to go to jail. Complainant noticed that hook of the door for opening the car was not there and the door of the car could not be opened by any passenger except the driver. The CR No. 38/15 2 of 8 complainant was made to loiter here and there on the roads and the accused continued to threaten him. The accused showed the complainant 23 files on which Delhi Police was printed. He also showed the complainant many nonbailable warrants and summons but none of them was in his name. When accused continued to threaten the complainant for about half an hour, complainant asked him to go near the ATM so that he could get chance to get out of the car. Seeing a police official in uniform, on the way, the complainant shouted and started to draw his attention. The police official, hearing the noise of complainant, after chasing the car, parked his motorcycle in front of it and stopped the car. The police official caught the driver of the car and on enquiry, he revealed his real name as Deepak Kumar s/o Shri Jagdish Singh. The car of accused was checked, from which files bearing the print of Delhi Police were recovered from his possession. Complainant also found that Rs.1,500/ were also taken out from his pocket by the accused.
3. On the aforesaid allegations of the complainant, FIR under Section 323/342/384/419/420/466/468/471 IPC was registered at PS G. K. I. Matter was investigated as per law. Accused was found involved in the commission of aforesaid offences. Therefore, chargesheet after investigation was filed against him.
4. Accused was summoned to face trial in the case. On his CR No. 38/15 3 of 8 appearance, accused was supplied copy of charge sheet and other documents in compliance of Section 207 Cr.P.C.
5. On considering the submissions of both the parties, Ld. MM came to the conclusion that prima facie, there was sufficient material on record to frame charge against accused for offence under Section 323/342/384/419/420/466/468/471 IPC. Therefore, charge for the said offences was directed to be framed against accused vide order dated 21.07.2014.
6. The petitioner, feeling aggrieved by the order dated 21.07.2014, for framing of charges against him, he has approached this court by way of present Revision Petition.
7. I have heard and considered the submissions advanced by Shri A. S. Kulshrestha, learned counsel for petitioner, Shri M. Zafar Khan, learned Additional PP for State and perused the record of the case.
8. Record shows that from the possession of accused, some documents including summons issued from the court of Shri Mukesh Kumar Gupta, the then Ld. MM at Tis Hazari Court, Delhi were recovered. Prima facie, the alleged recovered documents, from the possession of accused shows that they are having some alterations. In the course of investigation, the specimen handwriting of accused was taken by the Investigating Officer and same were sent to FSL for CR No. 38/15 4 of 8 comparison and opinion. As per expert opinion, the specimen handwriting of the accused matched with the alterations / writing on the summons and other documents recovered from the possession of accused. Thus, prima facie, there is sufficient material on record to show the involvement of accused in the forgery of documents i.e. summons etc. issued by the court. The accused used the forged documents as genuine to threaten the complainant.
9. From the averments made in the complaint, it is seen that accused made the complainant sit in the car, where he was wrongfully confined and complainant was having no option to go out of the car. He was also slapped by accused. Accused introduced himself to complainant as Insp. Surender, of SIU Branch of Delhi Police and on that representation, he demanded Rs.50,000/ from him. Complainant was told that he was under arrest and was threatened to give the accused Rs.50,000/. After being rescued by the police, complainant found out that Rs.1,500/ which he was having in his pocket, were taken out by accused. Later on, the said amount of Rs.1,500/ was recovered from the possession of accused. On the aforesaid averments of the complainant made in the complaint, prima facie, there is sufficient material on record to frame charge against accused for offence under Section 323/342/419 IPC.
10. Extortion as defined in Section 383 IPC includes putting CR No. 38/15 5 of 8 any person in fear of injury and covers Section 385 IPC, which is a less serious offence punishable with two years' imprisonment as against three years' imprisonment for an offence punishable under Section 384 IPC. It was held in the case of Lanka Hanumantha Rao, 2005 Cri.L.J. 4327 (AP) that "if a person voluntarily delivers any property without there being any fear of injury, an extortion can not be said to have been committed. The illustrations under Section 383 IPC would reveal that the delivery must be pursuant to threat of injury to reputation; to the body or to the body of another person".
11. The essence of offence of extortion is in the actual delivery of possession of the property by the person put in fear and the offence is not complete before such delivery (reliance is placed upon AIR 1955 SAU 42). In the instant case, the complainant pursuant to being put in fear of injury did not deliver any amount to petitioner / accused. Hence, the offence allegedly committed by accused does not fall under Section 384 IPC rather it falls under Section 385 IPC.
12. On careful reading of the contents of the complaint and the material available on record, this court is of the considered view that offence under Section 420 IPC is also not made out against accused. The difference between Section 417 IPC and 420 IPC is that, where, in pursuance of the deception, no property passes, the offence is one of cheating punishable under Section 417 IPC, but where, in pursuance of CR No. 38/15 6 of 8 the deception, property is delivered, the offence is punishable under Section 420 IPC (Reliance is placed upon the case i.e. Tulsi Ram AIR 1963 SC 666).
13. In the case in hand, in pursuance of deception played by accused / petitioner, the complainant did not deliver any property to him, therefore, in view of the law laid down in Tulsi Ram's case (supra), the offence under Section 420 IPC is not made out against accused.
14. In the course of arguments, learned counsel for petitioner submitted that the petitioner was process server at the time when the alleged offence was committed and as the prosecution has not got sanction from the competent authority for his prosecution for the offences in this case, therefore, his prosecution is bad in law and therefore, he should have been discharged by the learned MM. I do not agree with the submissions of learned counsel for the petitioner. This court is of the considered view that in the instant case, sanction from the competent authority is not required as it is not the duty of the process server to call a person by introducing himself as Inspector of Delhi Police and thereafter, extort money from him. Accused was not discharging his official duties at the time when he committed the alleged offence.
15. In view of foregoing reasons, I am of the considered view CR No. 38/15 7 of 8 that the impugned order needs to be modified. Accordingly, the order dated 21.07.2014 is hereby directed to be modified to the extent that offence under Section 420 IPC is not made out against petitioner and further, instead of offence under Section 384 IPC, offence under Section 385 IPC is made out. Rest of the order is upheld.
16. A true copy of the judgment along with TCR be sent to court concerned. Revision file be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e 24th February, 2015 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
CR No. 38/15 8 of 8