Vikas Chaudhary v.

State of NCT of Delhi & Anr. (SLP (Crl.) No. 8628 of 2009)

August 11, 2010 [Altamas Kabir and Dr. Mukundakam Sharma, JJ.]

2010(9) SCR 1076

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. Certain issues of legal importance, which call for  

examination, have surfaced in this otherwise sordid tale.

2. On 18th January, 2003, one Shri Vimal Chadha, resident of C-2/46, Ashok  

Vihar, Phase II, Delhi, filed a Missing Persons Report with the Ashok Vihar  

Police Station, Delhi, stating that his son, Parakh Chadha, had left home and  

had not returned. The next day he lodged F.I.R. No.34/03 at the Ashok Vihar  

Police Station which was initially registered under Section 364A of the Indian  

Penal Code on the allegation that a call had been received from an unknown  

caller demanding Rs.35 lakhs as ransom for the release of his son. The body  

of  Parakh  Chadha,  who  was  between  the  age  of  17  and  20  years,  was  

recovered  on  the  same  day.  Accordingly,  on  4th  May,  2003  Sections  

302/201/120-B,  read  with  Section  34  I.P.C.,  were  added  in  the  First  

Information Report.

3.  It  may,  however,  be  noted  that,  although,  the  body  of  the  victim  was  

recovered on 19th January, 2003, the fact that the body was that of the victim  

Parakh  Chadha  was  not  known  to  the  complainant  or  his  father.  The  

complainant and his father continued to receive ransom calls for the release of  

his  son  even,  thereafter,  on  20th  January,  2003,  1st  February,  2003,  10th  

March, 2003 and 11th March, 2003. In fact, the said phone calls made to the  

complainant  were  also  intercepted  by  the  police  and  the  same  were  also  

recorded  by  the  complainant.  Subsequently,  the  voice  of  the  callers  was  

identified by the Central Forensic Science Laboratory Reports as being those  

of the Petitioner, Vikas Choudhary, and the co-accused, Vikas Sidhu. On 4th  

May,  2003,  the  Petitioner  was  arrested  and  on  a  personal  search  being  

conducted,  a  seizure  memo  of  the  recoveries  made  from  his  house  was  

prepared and the disclosure statement made by him was recorded. From the

seizure memo it is seen that the wrist watch worn by the deceased Parakh  

Chadha was recovered from the Petitioner while the gold chain which had  

been worn by the deceased was recovered from the co-accused Vikas Sidhu. It  

appears from the disclosure statement made by the different accused that after  

killing the victim his body was thrown in a drain and was set on fire after  

sprinkling petrol thereupon. It is on 9th May, 2003, after the accused had been  

arrested that they disclosed the place where the victim’s body had been burnt  

and from where  some burnt  clothing and shoes  of  the  deceased  had been  

recovered  and  kept  in  Malkhana  of  P.S.  Kotwali  City,  Ghaziabad.  The  

complainant  identified  the  clothes  and  shoes  to  be  that  of  his  son  and  

subsequently also identified the gold chain and the wrist  watch which had  

been worn by his son on the day of his disappearance and had been recovered  

from the  possession of  the  Petitioner  and the  co-accused,  Vikas  Sidhu,  as  

belonging to his son.

4.  On  completion  of  investigation,  a  charge-sheet  was  filed  against  the  

Petitioner and Vikas Sidhu under Sections 364A/302/201/34/120-B, while the  

names of Joginder, Yogesh Rawat and Anil Pratap were mentioned in Column  

3 of the charge-sheet as accused.

5. Recording of evidence of the prosecution witnesses was commenced on 3rd  

May, 2005, and on 31st May, 2005, for the first time, the Petitioner herein  

moved an application before the learned Single Judge for transfer of his case  

to the Juvenile Justice Board on the ground that he was a juvenile at the time  

of commission of the offence. A matriculation certificate produced on behalf  

of the Petitioner showed his date of birth to be 20th December, 1985.

6.  The  aforesaid  application  filed  by  the  Petitioner  was  dismissed  by  the  

Additional  Sessions  Judge  on  24th  August,  2005,  on  the  ground  that  the  

Ossification Test conducted on the Petitioner showed that he was about 19  

years and 5 months of age when the offence was committed.

7. The Petitioner thereupon filed Criminal Revision P. No.751 of 2005 before  

the Delhi High Court, which, by its order dated 31st August, 2006, remanded  

the  matter  to  the  Additional  Sessions  Judge to  consider  the  matter  afresh.

Upon remand, the learned Sessions Judge by his order dated 20th January,  

2007, held that the Petitioner was not a juvenile on the date of the offence.  

The Court took note of the fact that neither any birth certificate nor any other  

certificate was produced on behalf of the Petitioner in support of the date of  

birth which appeared from the School Leaving Certificate.

8. Aggrieved by the judgment of the Court of Sessions, the Petitioner once  

again moved the Delhi High Court in Criminal Revision (P) No.156/07, which  

was allowed by the Delhi High Court on 11th September, 2007. The Delhi  

High Court directed the trial of the Petitioner to be separated from the case of  

the other accused. On 18th September, 2007, the trial of the Petitioner was  

separated and he was directed to appear before the Juvenile Justice Board on  

10th October, 2007, when he was granted bail by the said Board. The trial  

against  the other accused continued before the learned Additional  Sessions  

Judge and only 4 witnesses could be examined since on 2nd November, 2007,  

this Court granted stay of the trial court proceedings. By judgment and order  

dated 27th May, 2008, passed in Criminal Appeal No.966/08, this Court set  

aside the order of the High Court dated 11th September, 2007, allowing the  

revisional  application  and remanded  the  matter  to  the  trial  court  for  fresh  

consideration in the light of Section 472 of the Code of Criminal Procedure  

(‘Cr.P.C.’ for short), which provides for continuing offences and in case of a  

continuing offence, a fresh period of limitation begins to run at every moment  

of time during which the offence continues. While remanding the matter to the  

trial court, this Court observed in paragraph 14 of its judgment as follows:

“14. It may be true that the prosecution proceeded on the basis that the entire  

offence had taken place on 18.1.2003. We have, however, been taken through  

the charge-sheet, from a perusal whereof it appears that the appellant had been  

getting calls for payment of ransom despite the fact that the deceased had, in  

the meanwhile, been killed. It is one thing to say that a missing report has  

been filed on a particular date but it is another thing to say that in a case of  

this nature when the actual offence(s) had taken place would remain uncertain.  

Giving calls for payment of ransom is an offence. In case of murder coupled  

with  abduction  in  a  given  case  it  may  be  considered  to  be  a  continuous  

offence.”

9. The learned Additional Sessions Judge, by his order dated 29th July, 2008,  

was of the view that the proper authority to consider the matter on remand,  

was  the  Court  of  Sessions  and  not  the  Juvenile  Justice  Board  and  

consequently, it ordered for the production of the Petitioner before it. On 6th  

October,  2008,  the  Petitioner,  who  was  on  bail,  surrendered  before  the  

Additional Sessions Judge and was taken into custody and is in custody since  

then. By its judgment dated 2nd January, 2009, the Additional Sessions Judge  

held that the offence of murder coupled with abduction could be considered to  

be a continuing offence and in such circumstances, the dates when the ransom  

calls were made were significant. It was held that the last date on which the  

ransom call  had been made,  namely,  11th March,  2003, would have to be  

taken as  the relevant  date from which the  age of the petitioner  was to be  

counted to determine as to whether he was a minor within the meaning of the  

Juvenile  Justice  (Care  and  Protection  of  Children)  Act,  2000,  hereinafter  

referred to as “the Juvenile Justice Act”.

10.  Aggrieved  by  the  aforesaid  order  of  the  learned  Additional  Sessions  

Judge,  the  Petitioner  filed  Criminal  Revision P.  No.61 of  2009 before the  

Delhi High Court along with an application for grant of bail under section 439  

Cr.P.C. The High Court, by its judgment dated 13th March, 2009, dismissed  

the Revision Petition and the accompanying applications upon holding that the  

making of ransom calls on 19th January, 2003, 10th March, 2003 and 11th  

March,  2003,  even  after  the  murder  of  the  victim,  clearly  constitutes  an  

offence under Section 364A. It also held that if there was any error in framing  

of the charges, the same could be cured under Section 464 Cr.P.C. The trial  

Court, therefore, amended the charges on 16th April, 2009. The 4 witnesses  

who had been examined earlier in the absence of the Petitioner, were recalled  

on 5th May, 2009, and their statements were recorded in the presence of the  

Petitioner accused.

11. The instant Special Leave Petition has been filed against the said judgment  

and order dated 13th March, 2009 of the Delhi High Court  in Crl.R.P.No.  

61/09.

12. The main thrust of the arguments advanced on behalf of the Petitioner was  

that no case had been made out against the Petitioner on the basis of Missing  

Report  made by the complainant  on 18th January, 2003. A point of equal  

importance  was  also  urged  by  Mr.  K.B.  Sinha,  learned  Senior  Advocate,  

appearing for the Petitioner, to the effect that a ransom call could not have  

been made in respect of a dead person. He urged that a ransom call could  

certainly follow after an abduction, but once the victim of the abduction had  

been eliminated, the very question of an offence under Section 364A I.P.C.  

relating to ransom calls was no longer maintainable and at best, the offence  

could be said to have been committed under Section 364 I.P.C. On reference  

to the various definitions of the expression “demand of ransom”,  a further  

submission was made that in all cases the expression had been used in respect  

of a living person since the object of the ransom was release of the abducted  

person after payment of such ransom. Reliance was placed on the decision of  

this Court in State of Bihar vs. Deokaran Nenshi & Anr. [AIR 1973 SC 908],  

in support  of the contention that once the very object  of an offence under  

Section 364A I.P.C. ceased to exist, it could not be contended that an offence  

under Section 364A continued to survive. In the said decision, it was observed  

that continuing offence is distinguishable from an offence which is committed  

once and for all. It is one of those offences which arise out of a failure to obey  

or comply with a rule or its requirement and which involves a penalty, the  

liability  for which continues until  the rule  or its  requirement is  obeyed  or  

complied with. On every occasion that such disobedience or non-compliance  

occurs  and  recurs,  an  offence  is  committed.  Accordingly,  the  offence  as  

contemplated under Section 364A I.P.C. came to an end upon the death of the  

victim and could not be said to be a continuing offence. It was urged that in  

view of the amendments  effected to the definition of “juvenile” in Section  

2(k)  of  the  Juvenile  Justice  Act,  which  has  been  clearly  considered  and  

explained in Hari Ram vs. State of Uttar Pradesh [(2009) 13 SCC 211], the  

petitioner was entitled to the benefit of Sections 12 and 15 thereof.

13.  On  behalf  of  the  State  it  was  submitted  by  Mr.  Mohan  Jain,  learned  

Additional Solicitor General, that what would be the date of an offence in a  

given case has to be decided in regard to the fact situation thereof. He urged  

that Section 472 Cr.P.C. contemplates a continuing offence and a fresh period

of  limitation  is  to  run at  every moment  of  time during which the  offence  

continues  and,  although,  an  argument  had  been  advanced  that  the  entire  

offence had been committed on 18th January, 2003, there is no escape from  

the fact that it has also been established on evidence that the father of the  

deceased continued to receive calls for payment of ransom, despite the fact  

that the victim had been killed in the meantime. Mr. Jain urged that not only  

was  the  offence  extremely  grave,  but  it  was  further  compounded  by  the  

conduct of the accused, in continuing to make ransom calls even after he was  

alleged to have killed the victim.

14. Mr. Jain submitted that this is one of those rare cases where the offence  

initially committed must be held to be continuing on account of the nature of  

the  offence  and  the  manner  in  which  it  was  committed.  The  learned  

Additional Solicitor General urged that no interference was, therefore, called  

for with the judgment of the High Court and the Special Leave Petition was  

liable to be dismissed.

15.  Mr.  Sushil  Kumar,  learned  Senior  Advocate,  appearing  for  the  

complainant Mr. Vimal Chadha, submitted that the courts below had rightly  

held that the making of ransom calls after the death of the victim has to be  

treated  as  a  part  of  the  same  transaction,  since  one  was  consequentially  

dependent on the other. He submitted that once ransom calls were made even  

after the death of the victim, the offence became a continuous offence and the  

age of the petitioner would have to be computed from the date on which part  

of the offence was committed. Accordingly, while the Petitioner was found to  

have  participated  in  the  abduction  of  the  deceased,  which  resulted  in  the  

ransom calls and the death of the victim was very much a part of the initial  

abduction  and  was,  therefore,  a  continuing  offence  which  attracted  the  

provisions  of  Section  472 Cr.P.C,  which  would  have  to  be  read  with  the  

principal offence allegedly committed under Section 364A I.P.C.

16. The question which, therefore, calls for an answer is whether the High  

Court  was right in holding that the making of ransom calls, even after the  

death of the victim was a continuing offence so as to attract the provisions of  

Section 364A I.P.C.

17. There is little doubt that the main object of the offence committed by the  

accused was to extort money from the parents of the deceased victim by way  

of  ransom even after  the death  of  the  victim,  as  will  be evident  from the  

subsequent phone calls made right upto 11th March, 2003, asking for ransom.  

The offence under Section 364A did not come to an end only on account of  

the death of the victim since ransom calls had been made even though the  

victim had been killed. It is no doubt true that if the initial date of abduction,  

namely, 18th January, 2003, is taken to be the date on which the offence under  

Section 364A had been committed, as an isolated event, the Petitioner would  

have  been a  minor  within  the  meaning  of  the  Juvenile  Justice  Act,  2000.  

However, if 11th March, 2003, being the date on which the last ransom call  

was made, is taken as the date on which the aforesaid offence was committed,  

then the Petitioner would have ceased to be a minor and the above-mentioned  

Act would not apply to him.

18. Section 472 Cr.P.C., supports the submissions made both by Mr. Mohan  

Jain,  learned  Additional  Solicitor  General  and  Mr.  Sushil  Kumar.  We are  

unable to accept Mr. Sinha’s submission that the offence under Section 364A  

I.P.C. stood abrogated upon the death of the victim. On the other hand, the  

continuation of ransom calls being made, even after the death of the victim,  

converts the offence into a continuing offence within the meaning of Section  

472  Cr.P.C.  The  provisions  of  Section  364A  I.P.C.  which  are  extracted  

hereinbelow, will make the position clear :

“364A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person  

or  keeps  a  person  in  detention  of  the  such  kidnapping  or  abduction  and  

threatens to cause death or hurt to such person, or by his conduct gives rise to  

a reasonable apprehension that such person may be put to death or hurt, or  

causes hurt or death to such person in order to compel the Government or any  

foreign State or international inter-governmental organiza- tion or any other  

person  to  do  or  abstain  from doing any act  or  to  pay  a  ransom,  shall  be  

punishable with death, or imprisonment for life, and shall also be liable to  

fine.”

19. Section 364A I.P.C. states that apart from keeping a person in detention  

after kidnapping or abducting him or threatening to cause death or hurt to such  

person or by his conduct giving rise to a reasonable apprehension that such  

person may be put to death or hurt, and also that if the person involved in the  

kidnapping or abduction, actually causes hurt or death to such person for a  

ransom, he shall be punishable with death or imprisonment for life and shall  

also be liable to fine.

20.  Section  364A,  therefore,  contemplates  even the  death  of  the  abducted  

person  for  the  purpose  of  demanding  ransom.  Section 472 Cr.P.C.,  which  

defines continuing offence, reads as follows:

“472. Continuing offence.-In the case of a continuing offence, a fresh period  

of limitation shall begin to run at every moment of the time during which the  

offence continues.”

21. If Section 364A I.P.C. and Section 472 Cr.P.C. are to be read together, it  

has to be held that even after the death of the victim every time a ransom call  

was made a fresh period of limitation commenced. Accordingly, it would be  

the date  on which the last  ransom call  was made,  i.e.,  11th March,  2003,  

which  has  to  be  taken  to  be  the  date  of  commission  of  the  offence  and,  

accordingly,  the  Juvenile  Justice  Act  was  no  longer  applicable  to  the  

Petitioner, who had attained the age of 18 years by then.

22. We, therefore, see no reason to interfere with the order of the High Court  

impugned in this Special Leave Petition, which is accordingly dismissed.