Delhi District Court
State vs . Mohd. Naseem Khan S/O Mohd. Ishyaq on 24 August, 2013
IN THE COURT OF SH. LOKESH KUMAR SHARMA, CHIEF METROPOLITAN
MAGISTRATE, SOUTHEAST DISTRICT, NEW DELHI
State vs. Mohd. Naseem Khan S/o Mohd. Ishyaq
Khan, R/o45/F6, Prince Road,
Moradabad, U.P.
FIR No. 67/06
PS: Lajpat Nagar
under section:384/511/387/506 IPC
Unique ID No.02406R0475962009
ORDER ON CHARGE
1. As per the case of prosecution, on 18.1.2006 Sh. Amrit Kumar Chopra had
given a written complaint to DCP EOW, Crime Branch regarding the threat of extortion
extended to his son Sh. Sanjay Chopra on 15.1.2006 through email dated 20.12.2005
purported to have been sent from the ID ch[email protected] to his firm's email ID
namely [email protected] whereby one Changez Bazar claiming himself to be
the member of a Dubai based group 'Halala' had demanded an amount of Rs. 55 lacs
as protection money from the son of the complainant namely Sanjay Chopra and in
case of his failure to pay the said amount easily, he would have been compelled by
other means to pay double of the said amount i.e. to the tune of Rs. 1.10 crore. He
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was further threatened to be shot bullets in his knees if he had failed to comply with
their said demand and was also threatened with dire consequences to his wife, son
and daughter.
2. After receiving of this complaint, FIR was registered and investigation was
carried out.
3. During investigation, it was found that most of the emails were sent
from Noida, Dehradoon (Uttrakhand) and various places of Delhi as well as
Moradabad (UP). Thereafter, the traps were accordingly laid by Delhi police
Crime Branch at all such places and on 22.2.2006 in the evening, the present
accused was caught red handed from Sify iway, Mansarovar Complex, Sector
18, Noida, when he was trying to surf the Internet after entering his particulars
as Changez Bazar from the said premises and the hard disk of the said
computer alongwith the hard copy of the inbox and outbox of his mail account as
well as his laptop were seized through several seizure memos and were sent to
FSL for their scientific examination and accused was thus arrested in the
present case and was charge sheeted for the offences under Section
384/511/387/506 IPC.
4. I have heard Sh. Mayank Tripathi, learned APP appearing for the
State as well as Shri Aman Usman, learned counsel for the accused who has
categorically submitted that once an offence under Section 385 IPC related to
FIR NO.67/06 State vs. Mohd. Naseem Khan 2/10
an attempt to commit extortion is already in existence in the statute books, then
by no stretch of imagination, it could be presumed that an offence under section
384 IPC read with section 511 could survive in the eyes of law as has been done
in the present case. I also find myself in complete agreement with this argument
and contention of the learned defence counsel and I have no hesitation in
holding that instead of invoking the provisions of Section 384 read with section
511 IPC, the investigating agency should have invoked the provisions of section
385 IPC which is not only bailable in nature but also carries a limitation of three
years for filing of a charge sheet in that regard.
5. While addressing arguments on the point of charge, the learned
defence counsel has restricted his contentions only with respect to the technical
aspects of filing of charge sheet after expiry of the period of limitation because
FIR in the present case was registered on 18.1.2006 whereas the charge sheet
was filed only on 24.7.2009 i.e. almost after three years and six months from the
date of registration of FIR and that too without any application seeking
condonation of delay by the IO in the present case. In support of his contentions,
he has also relied upon the following citations:
6. In Arun Vyas & Anr. vs. Anita Vyas wherein it was held as under:
"Section 239 has to be read along with Section 240
Cr.P.C. If the Magistrate finds that there is prima facie
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evidence or the material against the accused in
support of the charge (allegations) he may frame
charge in accordance with Section 240 Cr.P.C. But if
he finds that the charge (the allegations or
imputations) made against the accused do not make
out a prima facie case and do not furnish basis for
framing charge, it will be a case of charge being
groundless, so he has no option but to discharge the
accused. Where the Magistrate finds that taking
cognizance of the offence itself was contrary to any
provision of law, like Section 468 Cr.P.C., the
complaint being barred by limitation, so he cannot
frame the charge, he has to discharge the accused.
Indeed in a case where the Magistrate takes
cognizance of an offence without taking note of
Section 468 Cr.P.C., the most appropriate stage at
which the accused can plead for his discharge is the
stage of framing the charge. He need not wait till
completion of trial. The Magistrate will be committing
no illegality in considering that question and
discharging the accused at the stage of framing
charge if the facts so justify."
7. Further reliance has also been placed on Vipin Kalra and Anr. vs.
State, 95 (2002) DLT 863 wherein it was held that:
"Section 468 creates a bar for taking of cognizance of
the offence after lapse of the period of limitation
prescribed in the section; Clause (b) of Subsection
FIR NO.67/06 State vs. Mohd. Naseem Khan 4/10
(2) of this section provides the period of limitation as
one year if the offence is punishable with
imprisonment for a term not exceeding one year. Sub
Section (3) of Section 468 Cr.P.C. provides that
limitation in relation to the offences being tried
together shall be determined with reference to the
offence which is punishable with more severe
punishment. The offence under Section 323 IPC is
punishable with imprisonment of either description for
a term which may extend to one year or with fine
which may extend to Rs.1,000/ or with both. Thus,
valid cognizance of the offence could be taken within
the period of one year from the date of commission of
offence. In this case, the offence was committed on
th
10 January, 1997. Police submitted the chargesheet
rd
on 23 March, 1998, i.e. after the expiry of period of
one year. Prosecution also did not file any application
for extension of the period of limitation under Section
473 Cr.P.C. In view of the unexplained delay,
cognizance could not be taken after the lapse of
period of limitation."
8. Further reliance has also been placed on State of Himachal
Pradesh vs. Tara Dutt and Anr., AIR 2000 SC 297, wherein it was held that:
"Section 468 of the Cr.P.C. provides period of limitation for
taking cognizance in Subsection (2) thereof and puts an
embargo on the Court from taking cognizance of an
FIR NO.67/06 State vs. Mohd. Naseem Khan 5/10
offence after the expiry of the period of limitation under
Subsection (1) thereof. Subsection (3), however which
was introduced by way of an Amendment Act of 1978,
provides that when accused is tried for several offences,
the period of limitation in relation to the offence which is
punishable with more severe punishment would be the
period of limitation for taking cognizance." (Para 4)
"Section 473 confers power on the court taking cognizance
after the expiry of the period of limitation, if it is satisfied on
the facts and in the circumstances of the case that the delay
has been properly explained and that it is necessary so to
do in the interest of justice. Obviously, therefore in respect
of the offences for which a period of limitation has been
provided in Section 468, the power has been conferred on
the Court taking cognizance to extend the said period of
limitation where a proper and satisfactory explanation of the
delay is available and where the Court taking cognizance
finds that it would be in the interest of justice. This discretion
conferred on the Court has to be exercised judicially and on
well recognised principles. This being a discretion conferred
on the Court taking cognizance, whereever the Court
exercises this discretion, the same must be by a speaking
order, indicating the satisfaction of the Court that the delay
was satisfactorily explained and condonation of the same
was in the interest of justice. In the absence of a positive
order to that effect, it may not be permissible for a superior
Court to come to the conclusion that the Court must be
deemed to have taken cognizance by condoning the delay
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whenever the cognizance was barred and yet the Court took
cognizance and proceeded with the trial of the offence. But
the provisions are of no application to the case in hand
since for the offences charged, no period of limitation has
been provided in view of the imposable punishment
thereunder. In this view of the matter we have no hesitation
to come to the conclusion that the High Court committed
serious error in holding that the conviction of the two
respondents under Section 417 would be barred as on the
date of taking cognizance the Court could not have taken cognizance for the said offence. Needless to mention, it is well settled by a catena of decisions of this Court that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of a minor offence if the facts established indicate that such minor offence has been committed." (Para 7)
9. In the light of aforesaid ratios of the Hon'ble Supreme Court of India as well as Hon'ble High Court of Delhi, it has been argued that in the absence of any specific prayer made by the IO for condonation of delay and an expressed order having been passed to that effect, the order passed by the learned Predecessor related to taking cognizance of the offence in a routine manner was liable to be reconsidered at this stage of charge and accused deserves a discharge in the present case on this technical issue alone without touching FIR NO.67/06 State vs. Mohd. Naseem Khan 7/10 upon the factual merits of the case.
10. On the other hand, Ld. APP appearing for the State has vehemently opposed this argument and contention of the learned defence counsel and has drawn attention of the Court to the invocation of provisions of Section 387 IPC as well as 506 IPC in this case and has submitted further that since section 387 IPC is punishable with imprisonment upto 7 years hence, the limitation clause of section 468 Cr.P.C. restricting the period of limitation to the three years shall not apply to the facts of the present case.
11. In reply to this contention of learned APP, learned Defence counsel has argued that all cases of attempted extortion are to be essentially governed by section 385 IPC alone and not by any other section. However, I do not find any merits in this submission of the learned Defence counsel because the very language of section 387 IPC itself makes it amply clear that it shall also cover the cases of an attempted extortion where extortion has been attempted alongwith some threat extended to the person upon whom it was to be committed and further it becomes amply clear that in order to invoke the provisions of section 387 IPC which has also been reproduced hereunder for the sake of convenience, it is not at all necessary that offence of extortion should have been essentially completed and even an attempt on the part of the offender to commit the extortion by putting the person upon whom the offence is FIR NO.67/06 State vs. Mohd. Naseem Khan 8/10 intended to be committed either in fear of death or to any other person shall be covered within the definition of said offence.
12. Section 387 IPC is reproduced hereunder:
"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."
13. Hence, I do not find any merits in this contention of learned defence counsel that Section 387 is not attracted to the facts of the present case.
14. So far as the invocation of section 506 IPC is concerned, I have no hesitation in holding that an offence under section 506 IPC is an independent offence itself related to criminal intimidation extended by an accused to the victim. However, any such intimidation while extended by the accused to his victim while committing some other offences such as extortion in the present case which shall be governed by section 387 IPC alone and shall not attract the provisions of section 506 IPC as have been contended by investigating agency in the present case.
15. In view of my above discussion, I have no hesitation in holding that only an offence under section 387 IPC is made out against the accused. Charge FIR NO.67/06 State vs. Mohd. Naseem Khan 9/10 be framed accordingly. Now to come up on 16.11.2013 for framing of charge.
ANNOUNCED IN THE OPEN COURT ( LOKESH KUMAR SHARMA) TODAY ON 24.08.2013. CMM/SE/Saket Court/New Delhi.
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