KIDNAPPING ABDUCTION AND EXTORTION

Facts: While PW2 was riding on his motorcycle, a Maruti Van blocked the motorcycle at Bakery Junction and six well built men who got out from the van, forced PW2 into the Maruti Van and the vehicle drove off. Of the six persons, PW2 identified the first accused Oopher Shaji, with whom he had previous acquaintance. While sitting inside the moving vehicle, the first and second accused fisted PW2 on his face asking why PW2 had not returned his mobile phone. After some time the first accused called out to someone named Sabeer to remove the number sticker fixed on the number plate. Meanwhile, the first accused forcibly removed Rs. 5,000/- from the pant pocket of PW2 and another person removed Rs. 1,000/- from his shirt pocket. The vehicle stopped at a secluded place and PW2 was forced to put his signature and thumb impression on blank and stamped papers. Utilising the opportunity of traffic congestion, PW2 jumped out of the vehicle, got into an autorickshaw and straight away went to the General Hospital. On receiving information regarding the incident, PW11 reached the Government Hospital and recorded First Information statement and thereafter registered FIR, arraying against Oopher Shaji (A1), Sameer (A2) and five other identifiable persons as accused. The first accused was arrested by and the Maruti Van, two fake number stickers, stamp pad and an amount of Rs. 2,030 was seized from his residential premises. Based on the information provided by the first accused, the Police party apprehended the second accused from his house and thereafter arrested the appellant (A3) from his wife's house. The stamp paper and blank papers with revenue stamps affixed on it and bearing the signature and thumb impression of PW2 were produced by the appellant and seized mahazar. The other accused, except accused No. 7, were also arrested on the same day.

Held: The form and content of the charge leaves much to be desired, about which I don't intend to belabour, since the offences are clearly stated. The first charge is of abduction, which by itself is not a punishable offence. The offence of kidnapping or abduction with intent to secretly and wrongfully confine a person is made punishable under Section 365. On scrutiny of the provisions relating to abduction and kidnapping, it can be seen that Section 359 segregates kidnapping into two kinds; kidnapping from India and kidnapping from lawful guardianship. Going by Section 360, kidnapping from India would be attracted only when a person is conveyed beyond the limits of India without consent and as per section 361, the offence of kidnapping from lawful guardianship is attracted only if the victim is a minor. Abduction by itself is not made a punishable offence. Only when the abduction is coupled with kidnapping and is made with certain intent, as stated in Sections 364 to 369, does it become a punishable offence. The evidence of this case would show that PW2 was forced into the Maruti Van and removed from the spot against his will, thereby committing the act of abduction. But, there is nothing in the evidence of either PW2 or PW11 to indicate that such abduction was made with the intention of secretly and wrongfully confining PW2. The evidence only shows that PW2 was forced into the Maruti Van and taken in the vehicle for some distance, during the course of which PW2 was assaulted, cash removed from his possession and forced to affix signature on certain papers. A little while later, PW2 managed to jump out of the vehicle. The two limbs of Section 365 are, (i) the victim should have been abducted or kidnapped and (ii) such abduction or kidnapping should have been with intent to secretly and wrongfully confine the victim. Both limbs having been used conjunctively, in order to attract the offence under Section 365, it is necessary that the victim should have been abducted with intent to wrongfully and secretly confine him/her. The second limb of Section 365 is not stated in the charge or proved by the prosecution. Hence, conviction of the appellant under Section 365 cannot be sustained. For the reasons mentioned above, the criminal appeal is allowed and the appellant acquitted.

Facts: While PW2 was riding on his motorcycle, a Maruti Van blocked the motorcycle at Bakery Junction and six well built men who got out from the van, forced PW2 into the Maruti Van and the vehicle drove off. Of the six persons, PW2 identified the first accused Oopher Shaji, with whom he had previous acquaintance. While sitting inside the moving vehicle, the first and second accused fisted PW2 on his face asking why PW2 had not returned his mobile phone. After some time the first accused called out to someone named Sabeer to remove the number sticker fixed on the number plate. Meanwhile, the first accused forcibly removed Rs. 5,000/- from the pant pocket of PW2 and another person removed Rs. 1,000/- from his shirt pocket. The vehicle stopped at a secluded place and PW2 was forced to put his signature and thumb impression on blank and stamped papers. Utilising the opportunity of traffic congestion, PW2 jumped out of the vehicle, got into an autorickshaw and straight away went to the General Hospital. On receiving information regarding the incident, PW11 reached the Government Hospital and recorded First Information statement and thereafter registered FIR, arraying against Oopher Shaji (A1), Sameer (A2) and five other identifiable persons as accused. The first accused was arrested by and the Maruti Van, two fake number stickers, stamp pad and an amount of Rs. 2,030 was seized from his residential premises. Based on the information provided by the first accused, the Police party apprehended the second accused from his house and thereafter arrested the appellant (A3) from his wife's house. The stamp paper and blank papers with revenue stamps affixed on it and bearing the signature and thumb impression of PW2 were produced by the appellant and seized mahazar. The other accused, except accused No. 7, were also arrested on the same day.

Held: The form and content of the charge leaves much to be desired, about which I don't intend to belabour, since the offences are clearly stated. The first charge is of abduction, which by itself is not a punishable offence. The offence of kidnapping or abduction with intent to secretly and wrongfully confine a person is made punishable under Section 365. On scrutiny of the provisions relating to abduction and kidnapping, it can be seen that Section 359 segregates kidnapping into two kinds; kidnapping from India and kidnapping from lawful guardianship. Going by Section 360, kidnapping from India would be attracted only when a person is conveyed beyond the limits of India without consent and as per section 361, the offence of kidnapping from lawful guardianship is attracted only if the victim is a minor. Abduction by itself is not made a punishable offence. Only when the abduction is coupled with kidnapping and is made with certain intent, as stated in Sections 364 to 369, does it become a punishable offence. The evidence of this case would show that PW2 was forced into the Maruti Van and removed from the spot against his will, thereby committing the act of abduction. But, there is nothing in the evidence of either PW2 or PW11 to indicate that such abduction was made with the intention of secretly and wrongfully confining PW2. The evidence only shows that PW2 was forced into the Maruti Van and taken in the vehicle for some distance, during the course of which PW2 was assaulted, cash removed from his possession and forced to affix signature on certain papers. A little while later, PW2 managed to jump out of the vehicle. The two limbs of Section 365 are, (i) the victim should have been abducted or kidnapped and (ii) such abduction or kidnapping should have been with intent to secretly and wrongfully confine the victim. Both limbs having been used conjunctively, in order to attract the offence under Section 365, it is necessary that the victim should have been abducted with intent to wrongfully and secretly confine him/her. The second limb of Section 365 is not stated in the charge or proved by the prosecution. Hence, conviction of the appellant under Section 365 cannot be sustained. For the reasons mentioned above, the criminal appeal is allowed and the appellant acquitted.

Facts: The complainant was a successful businessman in lime business and in order to establish a R.I.L. petrol pump at Khuntuni, he purchased land and with the help of the representatives of the R.I.L., he obtained 'No Objection Certificate' for establishment of retail outlet at Khuntuni under the name and style 'M/s. Shyam Filling Station'. A lease deed and a dealership agreement were executed between the complainant and the R.I.L. It is the case of the complainant that he paid Rs. 3,00,000/- as signing fees and Rs. 23,50,000/- as security deposits to the company. The complainant also obtained finance from State Bank of India, Athagarh Branch to the tune of Rs. 1.19 crores for completion of construction of the filling station as per the approved layout and design of R.I.L. It is also the case of the complainant that he operated the outlet for a period of two years as per the instructions and directions of the R.I.L. issued from time to time. There is no dispute that the R.I.L. suspended the supply of petrol and diesel to the outlet of the complainant with effect from 01.05.2008. In the complaint petition, it is mentioned that the R.I.L. and its representatives dishonestly and fraudulently made, signed, sealed and executed the documents with the intention of causing the complainant to believe that such documents would be acted upon bonafide and R.I.L. shall continue to deliver, diesel and allied products to the said filling station as per terms under the dealership agreement. The documents referred to are lease deed and dealership agreement. Both these documents were executed on 22.08.2005 in the non-judicial stamp papers. The complainant has signed the documents so also from the side of the R.I.L., the authorized signatory has signed the same. These documents have been executed in the prescribed formats of R.I.L. which are meant for the lessors/dealers. There is nothing to show that these documents are forged documents and created dishonestly or fraudulently.

Held: A distinction between theft and extortion is that the offence of extortion is carried out by overpowering the will of a person by putting him intentionally with fear whereas in commission of an offence of theft, the offender's intention is always to take the property without the owner's consent. In view of the discussions which have been made relating to offence under section 471 of the Indian Penal Code, since there is no material on record to show that the documents i.e. lease deed and dealership agreement are forged documents, the basic ingredients of offence under section 467 of the Indian Penal Code are altogether missing even in the allegations leveled in the complaint petition against the petitioner. Therefore, by no stretch of the imagination, the petitioner can be legally prosecuted for an offence under section 467 of the Indian Penal Code. To sum up, in the light of discussions made, it seems that the criminal prosecution instituted against the petitioner is nothing but used as an instrument of harassment and with an ulterior motive to pressurize the petitioner to compensate the loss or damage which has been caused to the complainant. For the reasons stated above, the CRLMC application is allowed.