Delhi District Court
Ps Crime Branch vs Samir Ahluwalia (On Court Bail) on 13 September, 2013
FIR No. 240/2012
PS Crime Branch
u/s 120-B,384/511, 420/511 & 201 IPC
State V. 1. Samir Ahluwalia (on Court bail)
2. Sudhir Chaudhary (on Court bail)
3. Subhash Chandra (not arrested)
13.9.2013
ORDER:
1. This order shall dispose of the issue regarding taking cognizance of the offences in the present matter.
2. I have already heard the arguments of ld. SPP for State and IO on this issue and perused the record.
3. The case of the prosecution against the accused persons in nutshell as evident from the charge sheet is that CAG had prepared a report dated 11.5.2012 on allocation of coal blocks which was tabled in the parliament on 17.8.2012. Thereafter, from 07.9.2012 onwards Zee News / Zee Business TV channels run by the Zee Group started running news programs targeting Jindal Steel & Power Ltd. (JSPL) regarding allocation of coal blocks to JSPL. The said news telecasts targeted and defamed JSPL and its other sister companies owned and managed by Mr. Naveen Jindal, MP. It is the case of the prosecution that these programs were telecast firstly from 07.9.2012 to 13.9.2012 and thereafter from 24.9.2012 to 26.9.2012. A complaint was filed on 02.10.2012 by Sh. Rajeev Bhaduria, Director (HR), JSPL alleging that accused no.1 who is Editor and Business Head of Zee Business and accused no.2 who is Editor and Business Head of Zee News channel had attempted to extort money to the tune of Rs.100 crores from the FIR No. 240/12 PS Crime Branch Page 1 of 11 Jindal Group. As per the complaint the accused no. 1 and 2 representing the Zee Group approached the officials of JSPL and during the course of four separate meetings held between 10.9.2012 to 19.9.2012 proposed that they would stop targeting the Jindal Group if they agreed to sign a four years advertisement contract with the Zee Media Group pledging a hundred crores @ Rs.25 crores per annum. As per the case of prosecution, the accused no.1 and 2 also prepared a document/contract to the tune of Rs.25 crores per annum spread over four years assigning Rs.15 crores to Zee New Ltd. and Rs. 10 crores to Diligent Media Corporation Ltd. both owned and managed by Zee Group. The first of the said four meetings were held on 10.9.2012 at the Costa Coffee Shop, G.K.-II, New Delhi between Mr. Ravi Muthreja, Sr. Vice President of JSPL and the accused no.1. As per the case of prosecution, the second, third and the fourth meetings were held on 13.9.2012, 17.9.2012 and 19.9.2012 respectively at Polo Lounge, Hotel Hyatt Regency, Bhikaji Cama Place, New Delhi and the last three meetings were audio and video recorded by the officials of JSPL. As per the case of prosecution it was evident from the call detail records (CDRs) of accused no.1 and 2 that they also kept the accused no.3, Chairman Zee News Ltd. in the loop about the meetings with JSPL officials and their outcome. Further, as per charge sheet all the three recordings provided by JSPL along with the memory cards were sent to CFSL and it has been opined by the concerned expert that there was no tampering, editing, interpolation and discontinuity in the recordings. It is further the case of prosecution that the accused no.1 and 2 upon being asked to give voice samples did not agree to repeat the exact words as mentioned in the transcript of the recordings made at Hotel Hyatt Regency, a fact from which an adverse FIR No. 240/12 PS Crime Branch Page 2 of 11 inference can allegedly be drawn against them,however, the said matter of obtaining voice samples is pending before the ld. Sessions Court. It has further been mentioned in the charge sheet that on 11.7.2013, the JSPL company submitted a copy of an email allegedly sent by accused no.1 to accused no.3 on 24.2.2012 outlining the gist of stories planned against the Jindal Group to which accused no.3 responded on 25.2.2012 stating that the accused no. 1 should collect more stories thus clearly indicating that accused no. 3 was actively involved in the daily affairs of the news channel and was especially monitoring the stories against the Jindal Group. It has also been mentioned in the charge sheet that since the email had been provided recently by the complainant company, therefore, unearthing the trail of email and verifying its authenticity will take some time due to the involvement of a foreign service provider and in this regard a supplementary charge sheet will be filed. In the page no. 95 of the charge sheet, it has specifically been mentioned that with regard to the accused persons namely Punit Goenka and Jawahar Lal Goel as mentioned at Sr. no. 1 & 2 of column no. 12 and also the three accused mentioned in column no.11, further investigation is in progress and, if necessary, a supplementary charge sheet u/s 173 (8) of Cr.P.C. will be filed in due course.
4. The ld. SPP for State referred to the charge sheet extensively and submitted that sufficient material is on record to take cognizance of the offences against the accused persons as mentioned in column no. 11 of the charge sheet. He also referred to various provisions of IPC including Section 383,384,420,511,201, Section 120A and Section 120B IPC and argued that FIR No. 240/12 PS Crime Branch Page 3 of 11 there is sufficient material on record to take cognizance of the offences as mentioned in the charge sheet.
5. It is evident from the perusal of the charge sheet that the gist of the case of the prosecution is that the accused persons attempted to extort money from the complainant JSPL by putting them in fear and threat of exposure through news telecasts regarding the allocation of coal blocks to JSPL in different meetings which were allegedly recorded by the officials of JSPL.
It is further evident from the facts as mentioned in the charge sheet that in the present case the voice samples of the accused persons is very important to connect them with the case crime because as per the story of prosecution the last three meetings between the officials of JSPL and Zee Group were recorded by the JSPL officials. Perusal of order dated 13.12.2012 of ld. Predecessor of this Court shows that the accused no. 1 and 2 voluntarily and out of their own free will consented to give their voice samples upon the application moved by the IO,however, as per the charge sheet the accused no. 1 and 2 have so far not given their voice samples because they did not agree to repeat the exact words as mentioned in the transcript of the recordings made at hotel Hyatt Regency and the said matter is pending before the ld. Sessions Court. It has been held in the case of Rakesh Bisht V. Central Bureau of Investigation 2007 (1) JCC 482 by the Hon'ble High Court of Delhi to the effect that the Court may permit the taking of voice samples only for the purposes of identification but the voice samples would not be admissible if they contain inculpatory statements because in that eventuality FIR No. 240/12 PS Crime Branch Page 4 of 11 the accused would have been compelled to be a witness against himself. Be that as it may, it is an admitted fact that so far no voice sample of the accused has been taken by the IO. It is a very material lacuna in investigation by the IO at this stage and it is evident that the present matter requires further investigation qua this aspect of the case. It is pertinent to note that even on page 68 of the charge sheet it has been mentioned that the efforts are in progress to obtain the voice samples of the accused persons in conformity with their statements made at the time of conversion with the complainant, while demanding money and the same will also be sent to CFSL for expert opinion and a report will be filed in a supplementary charge sheet.
6. Further, it is a settled law that on the given set of facts the offences of both extortion and cheating cannot be simultaneously made out. Section 383 IPC defines extortion and Section 415 IPC defines cheating. For the purposes of the offence of cheating there has to be a deception on the basis of a fraudulent or dishonest inducement where as under extortion a person is intentionally put in fear of an injury to that person or to any other person. It is thus evident from the bare definition of both the provisions that both the said offences are mutually exclusive of each other and cannot be simultaneously invoked against the accused. Perusal of the present charge sheet shows that the prosecution has sought to invoke S. 384/511 IPC and also Section 420/511 IPC against the accused persons which it seems is not permissible as per law. Further, from the charge sheet the basic ingredients of cheating are absolutely not made out because there is no element of deception or fraud being played by the accused persons upon the complainant. This FIR No. 240/12 PS Crime Branch Page 5 of 11 aspect also requires further investigation by the police.
7. One other Penal Section invoked against the accused persons in the charge sheet is Section 201 IPC. Section 201 IPC deals with causing disappearance of evidence of offence or giving false information to screen the offender. As per the charge sheet, during investigation the accused no.3 informed that he was not using any laptop nor does he communicate by using emails to his editors directly. It is also mentioned in the charge sheet that accused no.3 said that the mobile phone and SIM card used for the period September and October, 2012 have been lost. It is also mentioned in the charge sheet that the present case was registered on 02.10.2012 and immediately thereafter the accused no.3 in order to destroy the vital piece of evidence, changed the mobile phone instrument on 03.10.2012 and never produced the same for the purpose of investigation. It has also been mentioned in the charge sheet that the accused no. 3 did not produce the SIM card and informed that he had lost the same in February, 2013. It thus seems that in this context Section 201 IPC has invoked in the present matter by the prosecution. It is pertinent to note,however, that accused no.3 Subhash Chandra has been shown as one of the principal offender of the main offence and his name has been mentioned in column no. 11 of the charge sheet. The Hon'ble Delhi High Court in the case titled as Jitender Nath V. Ram Phal Bansal 2010 (3) JCC 1680 has quoted with approval one other judgment of the Hon'ble Delhi High Court in case titled as Sanjeev Nanda V. State 160 (2009) DLT 775 wherein in relation to the offence under Section 201 IPC, the Hon'ble High Court held as follows:
FIR No. 240/12 PS Crime Branch Page 6 of 11
"309. Section 201 is salutary principle of law to deter those who indulge in the act of destroying the evidence so as to screen the principal offenders of the main offence........................................................................
310. ............................. Section 201 deals with a situation where the felony has been committed and the person accused of offence under Section 201 has reasons to believe that a felony has been committed, commits any act so as to weaken the prosecution against the principal offenders....................................................................................". (emphasis supplied).
It is thus evident that Section 201 IPC cannot be invoked against a Principal offender of a case whereas all the three accused persons as mentioned in column no. 11 of the charge sheet have been shown as principal offenders in this case. It is again a material lacuna in the case of prosecution and further investigation is required by the IO in this regard.
8. One other provision of law as invoked in this case by the prosecution is Section 384/511 IPC against the accused persons. It is an admitted fact in this case that there was no delivery of any property or valuable security or anything signed or sealed which may be converted into a valuable security. It is a settled law that the essence of the 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 (reference is made to the judgment in the case titled as Labhshanker Keshavji V. State AIR 1955 SAURASHTRA 42). In reference to the facts of the present case, the illustration no. (a) of Section 383 IPC is also material which is as under:- FIR No. 240/12 PS Crime Branch Page 7 of 11
"(a) A threatens to publish a defamatory liable concerning Z unless Z gives him money. He thus induces Z to give him money. A has committed extortion." (emphasis supplied). It thus seems that in view of the peculiar facts and circumstances of the case, offence under Section 384/511 IPC is not attracted in the present case.
In this regard, it is pertinent to note that Section 385 IPC i.e. putting person in fear of injury in order to commit extortion seems to be the relevant Section on the facts of the case,however, the Court is constrained in not even taking cognizance of Section 385 IPC, at this stage, because, as mentioned above, one of the main evidence in this case i.e. voice samples of the accused persons to connect them with the case crime is missing. It is again a very material lacuna in the case of prosecution requiring further investigation by the IO.
9. Page no. 89 of the charge sheet shows that the IO has opined that the call detail analysis of accused Samir Ahluwalia had shown that he remained in constant touch with mobile no. +447507556472 during the period of negotiations with the complainant and it was also found that accused no. 1 and 2 had spoken on the above number immediately after the meetings with JSPL officials. As per the case of the prosecution, in order to ascertain the identity of the user of the above number on 09.12.2012, Sh.S.B.S. Tyagi, the then DCP/C&R made a call on the above number from his official mobile number 9818099052 and a reply was received on the voice mail recorded as 'Hi this is Subhash Chandra'. It seems that the accused no.3 has also been roped in this case by showing him as the user of the said mobile number. In FIR No. 240/12 PS Crime Branch Page 8 of 11 this context, it is pertinent to note that only on the basis of some recorded voice mail it cannot be stated that a particular individual is using that particular mobile number and any person can have any recorded voice mail mentioning any name in it. The further investigation in this regard is required to complete the entire chain to show that accused no. 3 was in fact the user of said mobile number while he was abroad and was in continuous touch with accused no.1 and 2.
10. It is further pertinent to note that in the final paragraph of the charge sheet i.e. at page no. 95, the IO has himself mentioned that further investigation qua the three accused mentioned in column no. 11 of the charge sheet is in progress.
During arguments, the ld. SPP for State referred to one judgment of Hon'ble Supreme Court of India titled as Yash Pal Mittal V. State of Punjab AIR 1977 SC 2433 and submitted that the sanction under Section 196 (2) Cr.P.C. is not required in the present case qua the offence under Section 120-B IPC. There cannot be any doubt whatsoever on the law as laid down by Hon'ble Supreme Court of India in this case, however, due to the glaring and material lacunas in the present case qua investigation, as detailed above, it seems that this case requires further investigation by the police.
It is also a settled law that when a charge sheet is filed before the Court of a Magistrate under Section 173 Cr.P.C., the Magistrate may do one of the three things i.e. (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceedings or (3) he may direct further investigation under Sub Section (3) FIR No. 240/12 PS Crime Branch Page 9 of 11 of section 156 Cr.P.C. and require the police to make a further report (reliance is placed upon the order of Hon'ble Supreme Court of India in case titled as Bhagwant Singh V. Commissioner of Police AIR 1985 SC 1285).
The ld. SPP for State during arguments also submitted that at this stage, the Court has to only see prima facie material on record for taking cognizance of the offences and not to make a detailed inquiry. There cannot be any doubt on the said proposition of law and the Court is also conscious that the matter is only at the stage of taking cognizance of offences,however, in view of the material lacunas in the investigation as pointed above, it seems that it will be in the interest of justice if the matter is directed to be further investigated by the Police. Further, as discussed above, in view of the order in Bhagwant Singh's case (Supra) the Court has power to direct further investigation at this stage also.
As discussed above, the matter requires further investigation on the material aspects as detailed above in this order. All the above mentioned circumstances point out that the matter has not been properly and fully investigated by the IO and requires further investigation. Keeping in view the facts of the case and the investigation done in the matter, it seems that the matter should be further investigated by a police official not below the rank of an ACP. Even otherwise, the power to change the Investigating Officer / Investigating Agency can be done by a Magistrate u/s 156(3) Cr.P.C. as held by the Hon'ble Delhi High Court in case titled as Parivartan & Anr. V. M.C.D. & Ors. 128 (2006) DLT 732 (DB).
In facts and above said discussion, the DCP Crime Branch is FIR No. 240/12 PS Crime Branch Page 10 of 11 directed to get the matter further investigated by a Police officer not below the rank of an ACP and to file a further final report in this matter at the earliest.
Order accordingly.
Announced in the open Court on 13.09.2013.
( AMIT BANSAL ) CMM: NEW DELHI 13.09.2013 FIR No. 240/12 PS Crime Branch Page 11 of 11