Arrest and Detention – Validity and legality of – Violation of procedure of arrest and curtailment of liberty – Seizure memo and arrest memo – Misuse of police power of arrest – Complaints of human rights pre and after arrests.
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
[DIPAK MISRA] AND [SHIVA KIRTI SINGH] JJ.
June 03, 2016
WRIT PETITION (CRIMINAL) NO. 30 OF 2015
Dr. Rini Johar & Anr. … Petitioners
State of M.P. & Ors. … Respondents
J U D G M E N T
Dipak Misra, J.
The petitioner no.1 is a doctor and she is presently pursuing higher studies in United States of America (USA). She runs an NGO meant to provide services for South Asian Abused Women in USA. Petitioner no.2, a septuagenarian lady, is a practicing Advocate in the District Court at Pune for last 36 years. Petitioner no.1 is associated with M/s. Progen, a US company.
2. As the facts would unveil, the informant, respondent no.8 herein, had sent an email to the company for purchase of machine Aura Cam, 6000, which is an Aura Imaging Equipment, in India and the concerned company sent an email to the respondent making a reference to the petitioner no.1. Thereafter, the said respondent sent an email asking her to send the address where he could meet her and have details for making payment. He also expressed his interest to become a distributor.
3. The informant visited the petitioner no.1 at Pune and received a demo of Aura Cam 6000 and being satisfied decided to purchase a lesser price machine i.e. “Twinaura Pro” for a total sum of Rs.2,54,800/-. He paid a sum of Rs.2,50,000/- for which a hand written receipt was given as the proof of payment. During the course of the said meeting, the 8th respondent expressed his desire to purchase a laptop of M/s. Progen of which the petitioner no. 1 was the representative. In pursuance of the discussion, the laptop was given to him who acknowledged it by stating that he owed a sum of Rs.4,800/- as balance consideration towards the Aura Cam and an amount of USD 350 towards the laptop. An assurance was given for remitting the money within a short time. As averred, the respondent no.8 had never raised any grievance relating either to the machine or the laptop. Certain transactions between the informant and the US company have been mentioned and the allegations have been made against the 8th respondent that he represented himself as the sole distributor in India which was brought to the notice of the concerned police in the State of M.P. by the competent authority of the company. The said facts really do not have much relevance to the lis which we are going to adjudicate in the present writ petition.
4. When the matter stood thus, the respondent no.8 filed a complaint before the Inspector General of Police, Cyber Cell, Bhopal alleging that the petitioner no.1 and Mr. Guy Coggin had committed fraud of US 10,500. On the basis of the complaint made, FIR no. 24/2012 under
Section 420 and 34 of the Indian Penal Code (IPC)
Section 66-D of the Information Technology Act, 2000
(for brevity, ‘the Act’) was registered against the petitioners by Cyber Police Headquarters, Bhopal, M.P. The respondent no.2, I.G. Cyber Cell, issued an order on 20.11.2012 which is to the following effect:-
“Cyber state police having registered FIR 24/2012 under S 420, 34 of Indian Penal Code and 66 D of IT Act search and information the undersigned persons are asked to go to Pune. 1. R.R. Devendra Sisodia 2. R.R. (Lady) Ishrat Praveen Khan 3. RR (Lady) Valari Upadhyay”
5. On 21.11.2012, Dy. S.P. State Cyber Police, Bhopal proceeded to pass the following order:-
“Cyber state police having registered FIR 24/2012 under S 420, 34 Indian Penal Code and S 66 D of IT Act accused Rini Johar and Gulshan Johar should be arrested and for that lady constable Ishrat Khan has been deputed with case diary with address from where they are to be found and arrested and it is ordered that they be brought to Bhopal. In reference to which you have been given possession of the said case diary.”
6. We have reproduced the said orders in entirety as the same has immense relevance to the relief sought for by the petitioners.
7. As the narration would unfurl, on 27.11.2012, the petitioners were arrested from their residence at Pune. Various assertions have been made as regards the legality of the arrest which cover the spectrum of non-presence of the witnesses at the time of arrest of the petitioners, non-mentioning of date, and arrest by unauthorized officers, etc. It is also asserted after they were arrested, they were taken from Pune to Bhopal in an unreserved railway compartment marked – ‘viklang’ (handicapped). Despite request, the petitioner no.2, an old lady, was not taken to a doctor, and was compelled to lie on the cold floor of the train compartment without any food and water. Indignified treatment and the humiliation faced by the petitioners have been mentioned in great detail. On 28.11.2012, they were produced before the learned Magistrate at Bhopal and the petitioner no. 2 was enlarged on bail after being in custody for about 17 days and the petitioner no.1 was released after more than three weeks. There is allegation that they were forced to pay Rs.5 lakhs to respondent no.3, Deepak Thakur, Dy. S.P. Cyber Cell, Bhopal. On 18.12.2012, chargesheet was filed and thereafter a petition under Section 482 CrPC has been filed before the High Court for quashment of the FIR.
8. At this stage, it is pertinent to state that on 19.2.2015 the petitioners filed an application for discharge and the learned Magistrate passed an order discharging the petitioners in respect of the offence punishable under Section 66-D of the Act. However, learned Magistrate has opined that there is prima facie case for the offence punishable under Section 66-A(b) of the Act read with Section 420 and 34 of the IPC.
9. Ordinarily, we would have asked the petitioners to pursue their remedy before the High Court. But, a disturbing one, petitioners while appearing in person, agonizingly submitted that this Court should look into the manner in which they have been arrested, how the norms fixed by this Court have been flagrantly violated and how their dignity has been sullied permitting the atrocities to reign. It was urged that if this Court is prima facie satisfied that violations are absolutely impermissible in law, they would be entitled to compensation. That apart, it was contended that no case is made out against them and the order of discharge is wholly unsustainable. Regard being had to the said submission, we appointed Mr. Sunil Fernandes as Amicus Curiae to assist the Court.
10. In this writ petition, first we shall address to the challenge relating to the validity and legality of arrest, advert to the aspect whether the petitioners would be entitled to any compensation on the bedrock of public law remedy and thereafter finally to the justifiability of the continuance of the criminal proceedings. Be it stated here that this Court on 7.12.2015, taking note of the submissions of the petitioners that they are not interested to prosecute their petition under Section 482 CrPC directed that the said petition is deemed to have been disposed of. It is also requisite to note here that despite efforts being made by the petitioners as well as the State of M.P, respondent no.8, who belongs to Jabalpur, M.P. could not be served. This Court is inclined to infer that the said respondent is really not interested to appear and contest.
11. As stated earlier, first we shall advert to the legality of arrest and detention. Mr. Saurabh Mishra, learned counsel appearing for the State of M.P. has submitted that as the State Government had already conducted an enquiry in this regard and initiated proceedings against the 3rd respondent, the matter should not be adjudicated at this stage. We are not disposed to accept the said submission, for initiation of a disciplinary proceeding or criminal prosecution should not be an impediment for delineation as regards the violation of procedure of arrest and curtailment of liberty.
12. We consider it imperative to refer to the enquiry made by the State and the findings arrived at by the enquiry officer. It is asserted in the counter affidavit that the petitioners had made a complaint to the Lokayukta Police (M.P. Special Police Establishment) alleging that Deepak Thakur, respondent no.3 herein, demanded a bribe of Rs.10 lakhs for letting them go and pursuant to the said demand, initially a sum of Rs.2,50,000/- was paid and subsequently a sum of Rs.2,50,000/- was also given. The Lokayukta Police had already registered a preliminary enquiry no. 33/2015 and after enquiry submitted an enquiry report dated 18.6.2015 stating that prima facie case had been made out against Deepak Thakur, Dy. S.P., Cyber Cell, Bhopal, Ishrat Khan, Head Constable, Cyber Cell, Bhopal, Inderpal, Writer, Cyber Cell Bhopal and Saurabh Bhat, Clerk, Cyber Cell, Bhopal under Section 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120B IPC. Based on the said preliminary enquiry report, FIR No. 273/2015 dated 27.3.2015 has been registered against the accused persons in respect of the said offences and further steps under the CrPC are being taken. Be it clarified, we are not at all concerned with the launching of said prosecution and accordingly we shall not advert to the same.
13. It is perceivable that the State in its initial affidavit had stated that the Director General of Police by its order dated 8.7.2015 had appointed Inspector General of Police, CID to enquire into the allegations as regards the violation of the provisions enshrined under Section 41-A to 41-C of CrPC. It needs to be stated here that in pursuance of the order passed by the Director General, an enquiry has been conducted by Inspector General of Police Administration, CID, Bhopal. It has been styled as “preliminary enquiry”. The said report dated 19.08.2015 has been brought on record. The Inquiring Authority has recorded the statement of Ms. Ishrat Praveen Khan. The part of her statement reads as follows:-