Extract from writ petition No. 25/2013 filed in SC
1. It is respectfully submitted that representatives of Jindal Steel and Power Ltd. claim that they had recorded meetings between them and the petitioner no.2 and the Editor of Zee Business on 13.9.2012. On the basis of such a claim, Jindal Steel and Power Ltd. filed a complaint incorporating therein entirely false allegations. It is entirely inexplicable and in the respectful submission of the petitioners, it is also one clear ground for rendering the FIR to be entirely illegal that there was no registration of any case from 13.09.12 till 01.10.12 and it is only after an apparent unexplained delay and only because of the influence exerted by this industrial group headed by an influential Member of Parliament that the FIR bearing no. 240/2012 was registered by the Delhi Police only on 02.10.2012 (a Public holiday on account of Gandhi Jayanti) and that too at 11. 50 p.m.
2. It is submitted that the malafides of respondent is clear from the very Sections under which the FIR has been registered. It is submitted that the primary allegation in the FIR is for extortion and criminal conspiracy. In this FIR, false allegations for commission of the offences U/s 384, 511, 120B had been included. It appears that thereafter Section 420 had been added subsequently. The relevant sections are reproduced as under:
“120B. Punishment of criminal conspiracy
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".
384. Punishment for extortion
Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.
385. Putting person in fear of injury in order to commit extortion
Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Cheating and dishonestly inducing delivery of property
Whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment
Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempts does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.”
3. It is submitted that Section 383 of Indian Penal Code provides for extortion. There are two essential ingredients u/s 383:-
a) Creating fear
b) Delivery of property or valuable security
The punishment for extortion has been provided under section 384 of the Act. This offence is non-bailable.
4. Section 385 deals with creating fear, however, there is no delivery of property or valuable security. In other words, it provides for a situation where the offence of extortion does not get completed. Thus, it has also been described as an attempt for extortion. This is a bailable offence. It is further to be noticed that the Indian Penal Code, when it provides for a general provision of Section 511, also provides for specific attempts in relation to certain offences such as Section 385 for attempt to extortion. Other examples in the IPC where specific provision in relation to various attempted offences are Section 121 – Attempt to wage war, Section 153A – Attempt to promote feelings of enmity, Section 309 – Attempt to commit suicide etc. It is an accepted principle of law in relation to Indian Penal Code that wherever specific provisions for attempts qua certain offences are provided in the IPC as stated above, general provision of attempt in Section 511 cannot be invoked.
5. It is quite apparent that respondents acted malafide in that they were fully conscious and aware that even in the allegations made in the present case, the essential ingredients of Section 383 are not fulfilled inasmuch as, admittedly, there was no delivery of any property or valuable security. Thus, Section 384 could not have been invoked. Similarly, Section 511 IPC also could not have been invoked. At the most it could only be Section 385 (which is bailable). However, for ensuring that they book the petitioner no.2 and others in a non-bailable offence, they invoked Section 384 with Section 511 and when neither Section 384 nor Section 511 could have been invoked. This is not permissible in law. When a particular offence of attempt to commit another offence is specifically provided in IPC, then, Section 511 is not available. It is respectfully submitted that respondent have done this only to make an example out of the petitioners so as to gag the media, by fear of unlawful and illegal arrest, from covering any News regarding the “Coal Gate” Scam.
6. It is further submitted that respondent has added Section 420 IPC to the FIR, however, in the bail order passed by the ld. Magistrate on 28.11.12, it has been specifically observed as under:-
“…….The FIR in this case was registered under section 384/511/120-B I.P.C. and section 420 I.P.C. has been subsequently added. In the opinion of this court, the allegations do not fulfil the ingredients of the offence of section 420 I.P.C. as the offence of cheating requires fulfilment of certain ingredients a) deception of any person b) fraudulently and dishonestly inducing that person 1) to deliver any property to any person or. 2) to consent that any person shall retain any property. 3) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
Since the element of deception is not made out. Thus, the offence u/s 420 cannot be said to be committed by the accused…….”
If the invocation of Section 384 as well as 511 is impermissible and Section 420 is ex-facie not made out as also observed by the ld. Magistrate in the bail order dt. 28.11.12, no case would also be made out under Section 120B of IPC. In any case, Section 120B is not at all made out. It is submitted that the FIR is completely illegal and deserves to be quashed.
7. It is respectfully submitted that the alleged offence had occurred as per the Jindal Steel and Power Ltd. on 13.09.12 as alleged and mentioned in the FIR. However, the information was received at police station only on 2.10.2012 at 11.50 p.m. The delay of more than 18 days in the registration of the FIR coupled with the timing that it was registered at midnight i.e. 11.50 p.m. that too on 02.10.12 which is a government holiday, would conclusively establish the malice in fact of the authorities thereby amounting to fraud on power when the power is exercised for ulterior motives. It is submitted that the date and time of recording of the FIR itself shows that the police authorities are acting under the influence of Shri. Naveen Jindal. The petitioner no.2 and the Editor of Zee Business viz. Petitioner no. 3 fully participated with the investigation process undertaken by the Crime Branch of Delhi Police. They had presented themselves for the investigation whenever they were called for. In the facts and circumstances of the present case, it is the submission of the petitioner no.2 that there was never any occasion for any ‘custodial interrogation’, however, in continuation with its malafide, the Delhi Police had arrested the petitioner No.2 and Petitioner no. 3 on 27.11.12. They remained in custody till they were granted bail on 17.12.12.