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Orissa High Court

Mohd. Arif vs State Of Uttarakhand on 19 August, 2014

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
                                
                                
                                


  Criminal Misc. Application (C-482) No. 909 of 2014

Mohd. Arif                              ................     Applicant

                               versus

State of Uttarakhand                    ................ Respondent

Mr. Ramji Srivastava, Advocate for the applicant,
Mr. Raman Kumar Shah, Dy. Advocate General with Mr. K.S.
Rawal, Brief Holder for the respondent State.


U.C. Dhyani, J.

(Oral) By way of present application under Section 482 of Cr.P.C., the applicant seeks to quash the order of non- bailable warrant dated 19.12.2013, as well as order dated 01.01.2014, under Section 82 of Cr.P.C. issued against the applicant by learned Judicial Magistrate II, Dehradun, in case arising out of case crime no. 81 of 2013, under Sections 384, 389, 504, 109, 120B, 468 of IPC and Section 67A of the Information Technology Act, relating to police station, Vasant Vihar, Dehradun. It is further prayed by the applicant that during the pendency of the above mentioned criminal misc. application, the operation of the order of non-bailable warrant dated 19.12.2013, as well as order dated 01.01.2014, under Section 82 of Cr.P.C. issued against the applicant by learned Judicial Magistrate II, Dehradun, in case arising out of case crime no. 81 of 2013, under Sections 384, 389, 504, 109, 120B, 468 of IPC and Section 67A of the Information Technology Act, relating to police station, Vasant Vihar, Dehradun, be stayed.

2) In other words, applicant Mohd. Arif, who is implicated in connection with case crime no. 81 of 2013, relating to offences punishable under Sections 384, 389, 504, 109, 120B, 468 of IPC and Section 67A of the Information Technology Act, police station, Vasant Vihar, District Dehradun, has sought interim protection from arrest and also sought quashing of non-bailable warrant, which was issued against him for the first time on 19.12.2013, as well as proclamation under Section 82 of Cr.P.C. which was issued against him on 01.01.2014.

3) The complainant lodged an FIR in police station, Vasant Vihar, District Dehradun on 22.11.2013, alleging therein, that he was receiving threatening calls for ransom and for producing some confidential official documents. According to him, Channel-I was telecasting some false and baseless news item against him.

4) Whereas learned Dy. Advocate General opposed such protection on the ground that the applicant is fleeing away from justice and is not cooperating with the investigating agency, learned counsel for the applicant submitted that (i) none of the telephone numbers cited in the FIR belong to the applicant; (ii) applicant never rang up to the complainant or the prosecutrix; (iii) a sting operation is not an offence; (iv) statement of any co-accused cannot be read against the applicant; (v) no offence punishable under Section 384 of IPC is made out against the applicant;

(vi) there was no delivery of money or any official document; (vii) offence punishable under Section 389 of 3 IPC is a bailable offence; (viii) applicant is Managing Director of well known news channel, viz., Channel-I, and has no concern with the telecast of said news; (ix) there was no whisper that the applicant ever contacted the complainant; (x) there was no evidence of applicant's having participated in extortion; and (xi) the applicant did not transmit the news.

5) According to Section 67A of the Information Technology Act, 2000 "whoever publishes or transmits or causes to be published or transmitted in the electronic form any material, which contains sexually explicit act or conduct shall be punished......."

6) It is an admitted fact that the present applicant is Managing Director of well known news channel, namely, Channel-I. Can it be presumed that such news in Channel-I could be published or transmitted or cause to be published or transmitted without the applicant Managing Director being associated in such transmission? A common prudent person will only think that the Managing Director was also associated with such transmission. It may be revealed during the course of trial that the applicant was not, in fact, associated with such transmission. But, at present this Court has no material to presume that the Managing Director was not involved in such transmission.

7) Sting operation may not be an offence, but extortion and transmission of any material which contains 4 sexually explicit act in the electronic form are certainly the penal offences.

8) This Court is in agreement with the submission of learned counsel for the applicant that the following ingredients would constitute the offence of extortion:

(1) The accused must put any person in fear of injury to that person or any other person.

(2) The putting of a person in such fear must be intentional.

(3) The accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security. (4) Such inducement must be done dishonestly.

9) No doubt, the delivery of money or the confidential official documents could not take place in the instant case, but it cannot be inferred, at this stage, that the applicant, who is Managing Director of Channel-I did not transmit or cause to transmit in the electronic form such material which contained sexually explicit act or conduct.

10) This Court, therefore, does not think it proper to grant interim protection from arrest to the accused-

applicant in public interest.

11) When co-accused Amit Garg, Neeraj Chauhan, Suman Singh Valdia and Sanjay Banerjee surrendered before the court, their bail applications were rejected by learned Magistrate as well as by learned Sessions Judge.

This Court also rejected their bail applications. When co- accused Amit Garg and Sanjay Banerjee approached Hon'ble Apex Court, their bail applications were dismissed. In the instant case, since the applicant did not cooperate with the investigating agency, therefore, non- bailable warrant alongwith proclamation under Section 82 of Cr.P.C. was issued against him.

12) Considering the facts narrated here-in-above, this Court is not inclined to accept the prayer of the applicant. It is not possible to quash or stay the order of non-bailable warrant and proclamation under Section 82 of Cr.P.C. against the applicant, passed by learned Judicial Magistrate II, Dehradun.

13) Application under Section 482 of Cr.P.C. is, therefore, dismissed at the threshold.

(U.C. Dhyani, J.) Dt. August 19, 2014.

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