Allahabad High Court
Satish Chaudhary @ Naga Chaudhary vs State Of U.P. And Another on 25 February, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:26809 Judgment Reserved on 13.11.2024 Judgment Delivered on 25.02.2025 Court No. - 86 Case :- CRIMINAL REVISION No. - 751 of 2023 Revisionist :- Satish Chaudhary @ Naga Chaudhary Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ishwar Kumar Upadhyay Counsel for Opposite Party :- Ashish Kumar Tripathi,G.A.,Sandeep Kumar Dubey Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard Sri Ashok Kumar Pandey and Sri Ishwar Kumar Upadhyay, learned counsels for the revisionist, Sri Sandeep Kumar Dubey and Sri Ashish Kumar Tripathi, learned counsels for the respondent No.2 and learned A.G.A. for the State-respondent and perused the material available on record.
2. Instant criminal revision has been preferred by the revisionists against the impugned order dated 01.02.2023, passed by Additional Session Judge, Court No.4, Ballia in Session Trial No.397 of 2022, (State vs. Satishs Chaudhary @ Ngar Chaudhary), under Sections 364, 323, 504, 506 IPC, Police Station Kotwali, District Ballia, as well as Criminal proceedings of S.T. No.397 of 2022 (State Vs. Satish Chaudhary @ Naga Chaudhary), pending before Additonal Session Judge, Court No.4, Ballia arising out of Case Crime No.304 of 2019, Under Sections 364, 323, 504, 506 IPC, P.S. Kotwali, District Ballia.
3. The factual matrix of the case in brief are that informant Vishal Mani Tripathi, respondent No.2 in present revision filed written statement at P.S. Kotwali, Ballia on 29.07.2019 with averments that on 28.07.2019 in which he stated that the applicant works in Firm M/s Electro World, Bank Road, Gorakhpur. He is also a resident of Gorakhpur, on 27.07.2019 he visited Hotel Balliah by Santosh Sahni , P.S. Phephana District Ballia alongwith his eight companions had to do some work in air-conditioning installed therein. His companions included Santosh Sahani, Shahnawaz, Shaif, Manoj, Pushkar, Ravi, Chandar and Hari Shankar, on 28.07.2019 when he was staying at hotel Arti Inn in the evening alongwith his eight companions after working on air-conditioning system at hotel Ballian of accused Satish Chaudhary @ Naga Chaudhary Naga Chaudhary in the evening, Naga Chaudhary the owner of hotel Balliah accompanied by his son Saurabh Chaudhary barged in his room at around 09:30 pm and started abusing the informant and his companion Santosh Sahni by calling name by mother and sister. They slapped Santosh Sahni, pointed pistol at him, threatened with life and kidnapped him. The informant prayed for saving his companion Santosh Sahani. The FIR was lodged under Sections 364, 504, 506 IPC and SI Paras Nath Singh was directed by Station House Officer to investigate the offence. FIR was lodged on 29.07.2019 at 01:25 hours. Prior to lodging of FIR on 28.07.2019 SHO Vipin Singh received information on UP 100 dial from Lucknow that a person Vishal Mani Tripathi had given information of kidnapping. The SHO contacted the informant on his mobile number, who stated his location at hotel Arti Inn, he visited the informant in the hotel and received oral information from him, who told that his senior Santosh Kumar Sahni was kidnapped by Naga Chaudhary, the owner of hotel Ballian and his son Saurabh Chaudhary on the point of weapon in the last night. In the night the police team led by SHO rushed to hotel Ballian after informing SHO Fepfana in whose jurisdiction said hotel was lying, to effect the search of the hotel when he reached the spot SHO Phephana was present alongwith his police force, who told him that in the room of General Manager two persons were found, one of them is abductee Santosh Sahni son of Gomti Sahni and the other is Saurabh Chaudhary. The SHO interrogated the victim who told him that he was kidnapped by Saurabh Chaudhary and his father Satish @ Naga Chaudhary. Satish @ Naga Chaudhary fled away from back door on apprehending arrival of police team. On personal examination of Saurabh Chaudhary a mobile phone set of Samsung Galaxy Note 9 and Rs.280/- cash were recovered, as arrest and recovery memo was prepared on the spot in the presence of police team.
4. The medico legal examination of injured Satish Sahni was conducted on 29.07.2019 at 02:00 am at the instance of police at District Hospital Ballia. In injury report swelling 4 cm over left side of face in an area 3 cm x 3 cm near TM joint X-ray of skull advice. (ii) complaint of pain back of neck left forearm. In the opinion of doctor injury was caused by hard and blunt object and fresh in duration. Patient was referred to orthopedic surgeon.
5. The Investigating Officer recorded statement of victim Santosh Sahni who stated that on 27.07.2019 he had visited hotel Ballian at Phephana (Ballia) alongwith his companion Vishal Mani Tripathi and others. He is posted as head technician in the Ms. Elctro World Bank Road, Gorakhpur. On 28.07.2019 after completing work he was staying in Hotel Arti Inn Room No.201, where his companions were also taking rest, suddenly Naga Chaudhary and his son Saurabh Chaudhary entered into his place abused him gave beating to him and pointed pistol on his chest. They dragged him and took him outside despite disposition from his companions, they got him sit in their vehicle and took him to hotel Ballian at Frfna. They brought him down the vehicle at the hotel and took him to the room of G.M. and got him sitted there, they assaulted him by kicks, fits and chappal, after sometime police registered the case and rescued him.
6. The companions of victim Shahnawaz, Shaif Ahmad, Manoj Kumar Kanaujiya, Prabhat Singh, Ravi Kumar Shivam @ Chandan and others supported FIR version. The Investigating Officer submitted chargesheet against the revisionist.
7. Satish Chaudary @ Naga Chaudhary and his son co-accused Saurabh Chaudhary were chargesheeted under Sections 364, 504, 506 IPC. The accused Saurabh Chaudhary was arrested on the spot and was subsequently bailed out by orders of court and revisionist was granted anticipatory bail by orders of this court. No weapon could be recovered or traced in the CCTV footage of the place of occurrence.
8. The revisionist assailed the chargesheet filed against him and co-accused for said charges before this Court by moving an application under Section 482 Cr.P.C. , which was registered as Application No.1321 of 2020. This Court disposed of the application under Section 482 Cr.P.C. vide judgment dated 19.11.2020. with following observations:-
"By means of this application, applicant had raised a disputed question of fact with respect to kidnapping of one Santosh Sahni, who was technician and came to hotel of accused applicant along with eight colleagues, who were working for the firm M/s Electro World, which deals with repairing of air conditioners. In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.
In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :-
61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court."
9. Accused Naga Chaudhary alias Satish Chaudhary filed an application under Section 227/228 Cr.P.C. pursuant to order dated 19.11.2020 passed by this Court under Section 482 Cr.P.C. as stated above, wherein it is stated this is admitted fact that as per prosecution version the informant and his companions including accused Santosh Sahni came to repair the air conditioning system of Ballian owned by the applicant on the behalf of firm M/s Electo World Bank Gorakhpur and the said firm is a services provider of Daikin AIR Conditioning India Pvt. Ltd. Vivhuti Khand from where the accused/applicant had purchased the Air Conditioning Plant in (VRG System) for hotel Ballian and as per agreement said firm has to provide free repairing service for one year from the date of installation of plant. The Air-conditioning Plant is worth Rs.44,10,275/- which was purchased for Hotel Ballian and same was installed by the firm M/s Electro World Gorakhpur. Immediately after installation of of air-conditioning plant, the hotel was facing problem of cooling and the guests who had already occupied the room were suffering and became annoyed due to non-functioning of cooling system and inspite of efforts being made on customer service provided, but getting no response accompanied was made by Assistant Food and Beverage Manager of the Hotel to Executive Officer of Daikin air-conditioning India Ltd. on email ID on 30.04.2019. at 12:00 pm.
10. Thereafter several complaints were made on various dates and ultimately the service provider Electro Work Bank Road, Gorakhpur sent its employee for resolving the issue of cooling. At the time of checking of gas leakage the employee holds the oxygen pipe in place of nitrogen pipe, consequently there was a blast in the second floor of the hotel causing huge damage, it virtually damaged the entire second floor and to that effect and affidavit was given by Maqsood an Engineer/Mechanic of Electro World, Gorakhpur on 22.07.2019.
11. It is also stated in discharge application that from these facts it is apparent that w.e.f. 22.04.2019 there were continuous complaints in functioning of the air-conditioning plant and inspite of that the repair work was done in the month of May 2019 and further on 21.07.2019 it was not improved and on 22.07.2019 a blast occurred in the hotel due to dis-functioning which caused huge damage in second floor. A complaint was made to service provider and then he send nine persons including the informant under the leadership of Santosh Sahni for completing the repair work and changing material part of the plant, which reached the hotel on 27.07.2019. Santosh Sahni and his team members were staying in hotel Arti Inn arranged by the applicant for the stay fooding and lodging.
12. Inspite of the persuasion of the applicant, the informant and is companions could not complete the work in time causing great hardship and annoyance to customers and staff. They had assured the revisionist to come again in the evening and complete the repairing work in the night of 28.07.2019, but they did not turn up. The applicant alongwith his son Saurabh Chaudhary visited hotel Arti Inn and found that only Chief Technician Santosh Sahni was there and rest had gone for marketing. The applicant and his son took Santosh Sahni with them reached at hotel for starting rest preparing work and also advised him to call other three members as the repairing work may be completed forthwith. The informant came back to hotel Arti Inn after sometime and when he was informed that Santoh Sahni had gone with the applicant and his son at hotel Ballian, then he filed a written report against the applicant and his son after taking advice from his firm and he also gave an information police and dial 100 to the effect that his companion Santosh Sahni was abducted at the point of pistol. Ashish Kumar Singh, Manager of Hotel Arti Inn from where victim was allegedly abducted by revisionist and his son has not supported FIR version in his statement under section 161 Cr.P.C.
13. It is concluded in discharge application dated 03.09.2022 that no case under Section 364 IPC is made out against the revisionist and his son. The FIR has been lodged with an intent to pressurize the applicant and to restrain him from claiming damage which had occurred due to blast of air-conditioning plant in second floor of the hotel. The dispute between the revisionist and informant side occurred only in view of deficiency in service provided by Daikin Air-conditioning India Ltd. And a civil dispute had been given criminal colour, so that the applicant may not raise his rightful claim of deficiency in service and damages.
14. Learned court below dismissed the discharge application vide impugned order dated 01.02.2023 after hearing the submissions made on behalf of accused applicant, first informant and prosecution counsel. Learned court below cited various judgments of Apex Court and has given a finding that on the basis of prosecution papers it appears that there were commercial relationship between informant company and accused persons. Eight persons visited the hotel Ballian alongwith abductee to carry out repair work in air-conditioning system, when they came to their place of stay in hotel Arti Inn, the applicant and his son Saurabh Chaudhary visited him abused him threatened with life and abducted him on the point of pistol. It is possible that due to non-functioning of AC system the customers staying in the hotel would have been facing trouble, but no person can be permitted to take law in his hand. The plea taken in written argument that no pistol could be recovered from the arrested accused Saurabh Chaudhary, will be considered afterwords at the stage of evidence. The charges levelled against the accused applicant are prima facie made out against him and there is no justifiable reason to discharge him.
15. Learned counsel for the revisionist placed the facts and grounds taken in discharge application which has been dismissed by court below has submitted that no case under Section 364 of IPC is made out against the revisionist and co-accused Saurabh Chaudhary. Had accused persons abducted the victim Santosh Sahni with intent to commit his murder, they would not confine him in their own hotel which was frequented by customers, staffs and visitors. One visible injury found on person of the victim is of simple nature and on non-vital part.
16. He next submitted the Investigating Officer had gone through CCTV footage of the place of occurrence, but he found no use in any weapon or pistol therein. Neither any weapon nor any vehicle used in commission of alleged offence has been recovered during investigation. For the purpose of framing of charge or conviction under Section 364 IPC the motive, previous relationship of parties and circumstances must be such that it clearly show that the person was abducted with intent to kill him. There is no evidence or material which could suggest that the victim was abducted in order to murder him. The ingredients of abduction as provided under Section 364 IPC are not attracted in the case even if the evidence collected by the Investigation Officer is taken on its face value.
17. Learned court below has dismissed the discharged application in mechanical manner without considering the grounds taken in discharge application, which clearly show that there was business relationship between the parties and the accused side had suffered much damage due to dis-functioning of AC cooling system and the aggrieved and his companions were employees of the firm which was earmarked as service provider of AC System in the hotel owned by the revisionist.
18. Learned counsel lastly submitted that at the time of framing of charge the probative value of the material on record cannot be gone into, but before framing of charge the court must apply its judicial mind on the material placed on record and satisfy itself that commission of offence by the accused was possible. At the stage of Section 227 and 228 Cr.P.C. the court is required to evaluate the material and documents on record with a view to find out, if the facts emerging there from taken at the face value disclosed the existence of all the ingredients constituting the alleged offence. For this limited purpose, sifting of evidence is permitted even at that initial stage it is not incumbent on the part of court to accept all the version of prosecution even it is opposed to commence sense or opposed to brought probabilities of the case.
19. Learned counsel placed reliance on a judgment of Hon'ble Supreme Court in P. Vijayan Vs. State of Kerala 2010 (2) SCC 398; Union of India Vs. Prafulla Kumar Samal 1979 (3) SCC 4; Soma Chakravarty Vs. State through CBI 2007 (5) SCC 403, M.E. Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru AIR 2020 (SC) 331; Vikramajit Kakati Vs. State of Assam 2022 (7) Supreme 12; CBI Vs. K Narayana Rao AIR (2012) 7 SC 33.
20. Per contra, learned counsel for the respondent No.2 and learned A.G.A. for the State submitted that later with regard to prayer of discharge is well settled by catena of judgments of Hon'ble Supreme Court where the accused can only be discharged if the court finds that charged against him is groundless or there is no ground for proceeding against him and discharge is the only remedy.
21. Learned counsel for the respondent No.2 further submitted that on the basis of evidence collected during investigation the charges levelled against the revisionist are clearly made out against him and leaned court below has rightly dismissed the discharged application filed by the revisionist by a speaking and well reasoned order, at the stage of consideration of prayer for discharge a mini trial cannot be held.
22. Section 227 Cr.P.C. provides for discharge in a session triable case, as present case is also a case projected as session triable case. Section 227 provides as under:-
"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
In the instant case main charge against the revisionist is under Section 364 IPC which provides as under:-
"Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
23. The provision of Section 365 IPC is also pertinent in context of present case, which is being reproduced as under:-
"Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
24. In the present case, there is no allegation that accused persons had caused any grievous hurt and extorted or tried to extort anything from the abductee, prior to or during period of abduction. There is nothing on record which could suggest that accused persons were seeking to derive any material gain from abduction of the victim. There was no occasion for them to abduct the victim Santosh Sahni in order that he may be murdered or may be so disposed of has to be put in danger/murder as provided under Section 364 IPC. All that appears from prosecution version and evidence collected during investigation that the revisionist and co-accused who is his son had forcefully took away the victim from his place of Stay, hotel Arti Inn situated under P.S. Kotwali, Ballia to their hotel Ballian lying within Phephana District Ballia to teach a lesson to him as the victim and his companions had come to repair the AC system installed in the hotel, at the instance of service provided and they could not repair the same to the satisfaction of the revisionist. One injury has been found on the face of the victim which reveals that he was physically assaulted in the fateful night. But these facts are not sufficient in itself by which an inference can be drawn that victim was abducted by accused with intent to kill him.
25. This is the not the case of the prosecution that the victim after being abducted by the accused and his son was taken to some confidential or secluded place which could not be approached or accessed by others. The victim was recovered by police from the room of General Manager in the presence of co-accused Saurabh Chaudhary son of revisionist in the same night.
26. In the light of above facts and situation and material available on record it can be discerned that no prima facie case under Section 364 IPC is made out against the revisionist or co-accused for reasons shown above. Taking into consideration on totality of facts and circumstances of case, it can not be held even prima facie that the victim was abducted by accused person with intention to commit his murder.
27. However, in the present case, the charge under Section 365 IPC in place of Section 364 IPC is made out against the revisionist and co-accused. As on a bare perusal of FIR version and evidence collected during investigation it can easily be inferred that revisionist and co-accused had abducted the victim with intent to cause him to be secretly wrongfully confined as in the present case.
28. Thus, keeping in view the totality of the facts and circumstances of the case and legal position as discussed above that although a charge under Section 364 IPC is not made out in the case, yet instead a charge under Section 365 IPC is made out against the revisionist, which is triable by a Magistrate.
29. Consequently the revisionist is liable to be charged under section 323, 504, 506, 365 IPC instead of Sections 364, 323, 504, 506 IPC as charge under Section 364 IPC is not made out on the facts of the case as its ingredients are not attracted in the case.
30. The court below is directed to frame charge under Sections 365, 323, 504, 506 IPC against the revisionist and co-accused, if he is also facing trial in the same case and not already charged after framing of charge under these sections will transfer the case for trial to the Chief Judicial Magistrate or the Judicial Magistrate having jurisdiction of the case and direct the accused/revisionist to appear before the CJM or the Magistrate as he deems fit, and thereupon said Magistrate shall try the offence in accordance with the procedure for the trial of moral cases instituted on a police report.
31. In case revisionist is not enlarged on bail in this case, he will appear before court below without further delay and file a bail application under section 365, 323, 504, 506 I.P.C. and same will be considered by court below in the light of guidlines issued by Apex Court in Satyendra Kumar Antil vs. C.B.I. (2022) 10 SCC 51
32. The revision stands partly allowed accordingly, to the extent that the charge under Section 364 IPC is altered to Section 365 IPC. Leaving other charges intact.
33. Let a copy of this order be forwarded to court below for necessary compliance.
Order Date :- 25.02.2025 Ashish/-