Usha Mehra, J.— Netra Pal and Harish Chand were booked under Section 363/364-A/365 Indian Penal Code (IPC) by Police Station Vivek Vihar vide FIR No. 227/94. Harish Chand since could not be traced, therefore, was declared proclaimed offender. However, trial was conducted against this appellant. After the conclusion of the case the learned Addl. Sessions Judge convicted the appellant Netra Pal for offence of Kidnapping for which he was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 300/-. In default of payment of fine to further undergo rigorous imprisonment for 15 days. He has also been convicted to offence under Section 364-A and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 300/-. In default of payment of fine to further undergo rigorous imprisonment for 15 days. Also convicted under Section 365 IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs. 300/-. In default of payment of fine rigorous imprisonment for 15 days. All the sentences have to run concurrently.

2. Mr. Saurabh Banerjee, amicus curiae for the appellant, at the outset said that so far as case of prosecution against the appellant under Sections 363 and 365 IPC is concerned he will not be addressing the Court. Therefore, this appeal survives only for offence under Section 364-A IPC and that is what was indicated by Mr. Saurabh Banerjee, counsel for the appellant right from the beginning. He restricted his arguments in this appeal only against the conviction and sentence passed under Section 364-A IPC.

3. The question raised by Mr. Saurabh Banerjee in this appeal is; Whether the letter EX. P-1 which was recovered from the possession of the appellant would constitute a demand “to pay ransom” as stipulated under Section 364-A IPC.

4. In order to appreciate the contention raised by Mr. Saurabh Banerjee it would be expedient to go through the facts of this case. Briefly stated the prosecution case as set up was that appellant was known from before to master Tanu Johri, aged about six years, son of Mr. Rishi Johri, PW-1. Appellant used to go to their house in Rickshaw and the boy had been known to the appellant from before. On 12th August, 1994 when Rishi Johri came back from work his wife told him that appellant Netra Pal had come and that their son Tanu along with other children had gone for joy ride in his Rickshaw. Appellant had dropped other children from his Rickshaw, but he took away Tanu on the pretext that he would give him more joy rides. Mrs. Johri under the impression that after some time appellant would bring back Tanu therefore did not report the matter. But when after a long time Tanu was not brought back she reported the matter to her husband who in turn tried to trace out the child as well as the appellant. But both were not traceable hence matter was reported to the police. Police after recording to the kidnapping case deputed raiding party to the village of the appellant. On reaching Village Bilgari, P.S Jatipur, Distt. Shahjahanpur, U.P they found Netra Pal the appellant present there and the child was in his possession. Netra Pal, the appellant and the child Tanu were identified by Anil Johri uncle of Master Tanu. Mr. Anil Johri was also a member of the raiding party. Accused was apprehended and arrested at his village on 15.8.94 He made a disclosure statement which was recorded as Ex. PW-2.B. From the search of the accused a letter Ex. P-1 was recovered which was purported to be a letter asking for ransom of Rs. 50,000/-. This appellant and the child Tanu along with raiding party came to Delhi. After completion of investigation challan was filed.

5. Admitted facts of the case are that Master Tanu Johri was kidnapped by the accused/appellant herein. He was kidnapped from the lawful custody and guardianship of his mother on the pretext of giving him joy ride in his cycle Rikshaw. He wrongfully confined master Tanu. It is established on record that accused took Master Tanu to his village at Bilgari. It is also a fact proved on record that the letter purported to be for ransom claiming Rs. 50,000/- Ex. P-1 was recovered from the possession of the accused/appellant herein on 15th August, 1994 that is the time when he was apprehended. Statement of the child was recorded under Section 164 Cr.P.C and thereafter child was handed over to his parents. Therefore, so far as facts of recovery of ransom letter Ex. P-1 from possession of the appellant there is no dispute. The only point for consideration is whether this letter Ex. P-1 purported to be a letter seeking ransom of Rs. 50,000/- recovered from appellant would constitute a demand, “to pay a ransom”.

6. The bare reading of Section 364-A IPC, which is reproduced as under, indicates that kidnapping for ransom would be attracted when the kidnapper makes a demand to pay a ransom.

“364-A Kidnapping for ransom, etc. whoever kidnaps or abducts any person or keeps a person in detention after 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 organisation or any other person] to do or abstain from doing any act to pay a ransom, shall be punishable with death or imprisonment, for life and shall also be liable to fine.”

7. Therefore, the question for consideration is what does the words “to pay a ransom” stands for? Does it mean that Kidnap or abduction with the intention to demand ransom is sufficient to cover the prosecution case under Section 364-A or such a demand has to be translated into action by communicating the demand either by post or by contact.

8. As already pointed out above to attract the provisions of section 364-a ipc, prosecution has to prove that the accused kidnapped or abducted the child, kept him under detention after such kidnapping and that the kidnapping was for ransom. So far as kidnapping and detention is concerned those have been established in the facts of this case. But by mere recovery of letter Ex. P-1 purported to have been written by the accused indicating a demand of Rs. 50,000/- by itself, to our mind, would not be covered under the expression “to pay a ransom”. For the purpose of getting paid a ransom a demand has to be made and communicated. Unless the price of retrieval or rescue is made the question to pay a ransom would not arise. Therefore, the essential ingredient to attract the provisions of section 364-a is that there has to be a demand by the Kidnapper on the complainant or any of his relations asking for the payment of ransom. “To pay” means to set in motion the demand for payment. Demand cannot be by keeping the letter in one's pocket. It has to be communicated to the person from whom the demand to pay is made. Unless that is done prosecution cannot succeed in covering its case under Section 364-A. In the case in hand neither the demand was raised on the family of the kidnapped boy nor communicated. Therefore, mere writing a letter and keeping it in his pocket would not tantamount to be a demand to pay a ransom.

9. Mr. Ahluwalia, learned Counsel for the State on the other hand contended that kidnapping of the child Master Tanu for ransom was the only purpose. The intention and motive was to extract money which is clear from the letter written by accused Ex. P-1. There was no other motive for the accused to kidnap the child, but to claim ransom. In the ordinary course he would have posted the letter Ex. P.1 but before he could do so he was apprehended by the police on 15th August, 1994. Therefore, it is apparent that the motive to kidnap was to claim ransom for the return of the child. From the facts on record, Mr Ahluwalia contended that the intention to claim ransom stood established when it was proved that he kidnapped master Tanu for money. Motive is also established from his letter Ex. P-1 which was recovered from his possession. He made an attempt by writing a letter Ex. PW1. The only thing he could not do was to post the same because by then he was apprehended and arrested.

10. Mr. Ahluwalia's contentions though very forceful but unfortunately reading of the provision of section 364-a, we can't agree with the same. “To pay a ransom” means demand which requires communication by the kidnapper on the family of the kidnapped. Unfortunately communication the material link was missing in this case. Unless that was established “to pay a ransom” cannot be inferred with facts of this case. Admittedly accused had not posted the letter till such time he was arrested. He had kidnapped the child on 12th August, 1994. He was arrested on 15th August, 1994 and till then he had neither posted the letter, Ex. P-1 nor personally contacted the family of Master Tanu. Thus till 15th August, 1994 he had not raised the demand to pay a ransom. Similar question came up before the Bombay High Court in the case of Mohammad Rashid Ansari v. State, II (1998) CCR 608 (DB). In that case the minor boy was kidnapped. There was allegation of demanding ransom by the accused from the uncle of the kidnapped child but on facts the alleged demand was not established. The demand of ransom having not been established, the Court observed that:—

“17. In the instant case, except for indicating that there must be some strong reason for the accused-appellants to take the boy away in the aforesaid manner, that alone is not, in our opinion, enough to make out the theory of ransom.”

11. In that case the minor boy was kidnapped and it was alleged by the prosecution that a telephone call came from an anonymous person at the place of business of the uncle of kidnapped boy. It was disclosed through telephone conversation that the kidnapped boy Gururaj was taken to Agra and that a ransom amount of Rs. 2,50,000/- was demanded on telephone from, the uncle of the kidnapped boy. Court after going through the record concluded that the ransom theory and that of telephone call were not established. There was no corroborative piece of evidence to establish that there was an anonymous call and that ransom was demanded. It was in this background the Court observed that:—

“16. What, we are therefore left with is the mere possibility amounting almost to certainty as to there being some motive for the entire exercise. However, what may be there cannot take the place of what is established by proof. ‘May’ cannot be raised to level of ‘must’, unless there is material warranting the conclusion.

12. In the case in hand also the prosecution in order to succeed to make out a case against appellant under Section 364-A had to establish that the demand for ransom was made on the family of the complainant i.e family of master Tanu. In the absence of there being any communication demanding payment of ransom, to our mind, case or the prosecution is not covered under Section 364-A IPC. To arrive at this conclusion we are also supported by the observations of Supreme Court in the case of Mohan and Ors. v. State of Tamil Nadu, (1998) 5 Supreme Court Cases 336. In that case a boy of 10 years age was kidnapped for ransom. The Kidnapper contacted the father of the deceased and demanded Rs. 5 lacs so that the boy could be released otherwise they threatened to kill him. After killing the boy they again contacted the father of the deceased to get a ransom of Rs. 5 lacs and ultimately succeeded in extracting a sum of Rs. 5 lacs from him. It was in this background that the Apex Court held that it was a case of Kidnapping for ransom. In the above case the demand was made by the kidnappers by contacting the father of the kidnapped boy. There was communication of demand by contact. But that is missing in the case in hand. Similarly, in the case of Gurudev Singh Alias Bittu and Another v. State of Punjab, 1998 Supreme Court Cases (Crl) 560 the Court while interpreting the provisions of Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 concluded that mere attempt to commit extortion from an individual is not covered under the said provisions. To attract the provisions of Section 3(1) of TADA the prosecution was to prove that photocopy of the threatening letters had in fact been addressed to public. In the absence of receipt of such threatening letter by any member of the public the case would not be brought within the scope of section 3(1) of tada. In that case the Apex Court was dealing with section 3 of tada which on analysed was found to show that:

“that whoever with intent (i) to overawe the Government a by law established; or (ii) to strike terror in the people or any section of the people; or (iii) to alienate any section of the people; or (iv) to adversely affect the harmony amongst different section of the people, does any act or things by using (a) bombs or dynamite, or (b) other explosive substances, or (c) inflammable substances, or (d) firearms or (e) other lethal weapons, or (f) poisonous or noxious gases or other chemicals, or (g) any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to Cause or as is likely to cause (i) death, or (ii) injuries to any person or persons, (iii) loss of or damage to or destruction of property, or (iv) disruption of any supplies or services essential to the life of the community, or (v) detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act commits a ‘terrorist act’ punishable under section 3 of tada”.

13. Clause V which is reproduced above and underlined is analogous to that of Section 364-A IPC while interpreting this aspect the Apex Court observed that mere possession of photocopy of posters would not constitute terrorist act. In that case State recovered photocopies of the posters from the accused. The prosecution case was that these photocopies of the posters recovered from the accused would bring the case against them under Section 3 of the TADA. The court after noting rejected the contention and observed:—

“Even assuming for the sake of argument that the photocopy of poster Ext. PB and the photocopy for poster Ext. PC were recovered from the pockets of the appellants as alleged there is nothing on the record to show that any similar letter had been sent by the appellants to any member of the public, as no one from the public has been examined at the trial to show that he had in fact received a copy of the poster similar to Ext. PB or PC. The authorship of Ext. PB and Ext. PC has also not been fastened on the appellants by the prosecution. Mere recovery of the photocopies of some poster, therefore, can by no stretch of imagination attract the provisions of section 3 of tada”

14. Under Section 3 the prosecution was to establish that the appellant committed terrorist act and for that mere possession of photocopy of poster was not considered sufficient to constitute committing a terrorist act. It is only when the pamphlets and letters had been posted and received by the members of the public that the provisions of section 3 of tada could be attracted. Similarly in the case in hand to attract the provisions of section 364-a the prosecution had to establish that “to pay a ransom” demand was raised either by contact or telephonically or by writing or sending the letter to the parents of the kidnapped boy. Having not done so mere possession of the letter Ex.P-1 by the appellant was not sufficient to attract the provisions of section 364-a IPC. Similarly in the case of Radha Ballabh and Ors. v. State of U.P, 1995 Supp. (3) Supreme Court Cases 119, the Apex Court upheld the decision of High Court which convicted the accused because he wrote a letter demanding ransom. The letter was communicated to the informant and to the father of kidnapped boy. The Apex Court observed that the contents of the letter which was communicated to the father of the kidnapped boy showed that the ransom was demanded. Those letters were sent by post and were received by the addressed in due course. It was in this background that the Court concluded that there was a demand for ransom, and, therefore, the accused was rightly convicted. But also those are not the facts of the prosecution case. It is prosecution's own admitted case that letter Ex. P-1 had not been communicated to the father of the kidnapped boy. Letter Ex P-1 was still in possession of the accused. Therefore, mere recovery of Ex.P-1 from the possession of the appellant cannot be deemed to pay a ransom as stipulated under Section 364-A IPC. The attempt to make the demand has to be put into operation by communicating the same by either way having not done so it cannot be said that there was a demand to pay the ransom.

15. To pay a ransom as per Black's Law Dictionary would mean “to pay price or demand for ransom.” The word “demand” means “to claim as one's due”, “to require” “to ask relief”; “To summon”; “to call in court” “An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act”; An asking with authority, claiming”. The definition as pointed to about would show that the demand has to be communicated. It is an imperative request or a claim made. Therefore, that claim or imperative request or asking with authority could only be if the demand is conveyed or communicated. Communications means “information given” “the sharing of knowledge by one with another”; “bargaining preparatory to making a contract”; “to convey”; “make known”; “to talk over”; “to transmit information.” That the demand in order to communicate requires necessarily the information to be conveyed to the person for whom it is meant. It is only after receipt of this information that the question to pay a ransom would arise. But that situation had not yet arisen in the present case. The demand had yet not been communicated to the family of Master Tanu. Therefore, the question of payment of ransom did not arise.

16. We find that the argument of Mr. Ahluwalia though attractive but in view of the statutory provisions cannot be accepted. Mr. Ahluwalia's contention that motive for kidnapping was ransom and the intention was clear from Ex. P-1 and had he been arrested on 15th August, 1994, the accused would have posted the letter. Therefore, it should be presumed that he intended to kidnap Master Tanu for ransom. As already pointed out above mere intention is not sufficient. That intention had to be put into practice by demanding ransom and until that was done the case would be outside the purview of Section 364-A IPC.

17. For the reasons stated above while upholding the conviction and sentence of the appellant under Section 363/365 IPC was set aside his conviction and sentence under Section 364-A IPC. If the appellant is not required in any other case he may be released. Order be communicated to the appellant through the Superintendent, Central Jail, Tihar.

18. But before parting we must pen down our appreciation of Mr. Saurabh Banerjee who as amicus curiae very ably assisted this Court.