TMI Blog2016 (6) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... SSA [ 1993 (3) TMI 355 - SUPREME COURT] , SUBE SINGH VERSUS STATE OF HARYANA AND ORS. [ 2006 (2) TMI 699 - SUPREME COURT] , comes into play. The constitutional courts taking note of suffering and humiliation are entitled to grant compensation. That has been regarded as a redeeming feature. In the case at hand, taking into consideration the totality of facts and circumstances, we think it appropriate to grant a sum of ₹ 5,00,000/- (rupees five lakhs only) towards compensation to each of the Petitioners to be paid by the State of M.P. within three months hence. It will be open to the State to proceed against the erring officials, if so advised. In the present case, it can be stated with certitude that no ingredient of Section 420 Indian Penal Code is remotely attracted. Even if it is a wrong, the complainant has to take recourse to civil action. The case in hand does not fall in the categories where cognizance of the offence can be taken by the court and the accused can be asked to face trial. In our considered opinion, the entire case projects a civil dispute and nothing else. The proceedings initiated at the instance of the 8th Respondent is quashed - the order nega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 (Indian Penal Code) and Section 66D 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age, 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 66D of the Act. However, learned Magistrate has opined that there is prima facie case for the offence punishable Under Section 66A(b) of the Act read with Section 420 and 34 of the Indian Penal Code. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, Clerk, Cyber Cell, Bhopal Under Section 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120B Indian Penal Code. 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 Code of Criminal Procedure 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 41A to 41C of Code of Criminal Procedure. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 420, 34 Indian Penal Code read with Section 66D IT Act, 2000 against the named accused persons. The offence was to the effect that though the alleged accused persons obtained ₹ 5.00 lakh, they did not supply the camera etc and they supplied the defective articles. This sale-purchase was conducted through the online correspondence, due to which the Section of IT Act was imposed. It was found on the preliminary inquiry that Shri Vikram Rajput gave the payment of ₹ 2.50 lakh by the bank draft and the remaining payment by cash. The facts of the payment and supply are now disputed and the trial of Crime No. 24/12 is pending in the competent Court. Therefore, to give any inquiry finding on it would not be proper. It is clear from the documents attached to the case diary and the statement of Shri Deepak Thakur that Shri Deepak Thakur sent 2 notices respectively by the post and through the Deputy Commissioner, Economic Crime and Cyber Pune respectively to Miss Rini Johar on 01.06.2012 and 02.07.2012 in the investigation of the offence, but they did not appear before the Investigator. It has not been written above both the notices if the notice has been issued Under Section 41A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrested persons was neither furnished in the District Police Control Room Pune, nor was it published there. It has also been clarified in the preliminary inquiry that the accused persons after they were arrested were not produced before the Local Judge and they were brought to Bhopal by rail. Miss Ishrat Khan stated that she did not obtain the rail warrant of neither the policepersons nor the accused during return due to paucity of time. And finally: As such, the facts of arresting both the suspected women and making seizure memo searching their houses not fully following the procedure of arrest by the Investigator and police team have come to the fore in the preliminary enquiry prima facie. 15. Keeping the aforesaid facts in view, we may refer to the decisions in the field and the submissions canvassed by Mr. Fernandes, learned Amicus Curiae. 16. In Joginder Kumar v. State of U.P. (1994) 4 SCC 260 while considering the misuse of police power of arrest, it has been opined: No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure. The Court in Arnesh Kumar v. State of Bihar and Anr. (2014) 8 SCC 273, while dwelling upon the concept of arrest, was compelled to observe thus: Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in Code of Criminal Procedure. It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. 20. Therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged Under Section 41 Code of Criminal Procedure has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid. 22. We have referred to the enquiry report and the legal position prevalent in the field. On a studied scrutiny of the report, it is quite vivid that the arrest of the Petitioners was not made by following the procedure of arrest. Section 41A Code of Criminal Procedure as has been interpreted by this Court has not been followed. The report clearly shows there have been number of violations in the arrest, and seizure. Circumstances in no case justify the manner in which the Petitioners were treated. 23. In such a situation, we are inclined to think that the dignity of the Petitioners, a doctor and a practicing Advocate has been seriously jeopardized. Dignity, as has been held in Charu Khurana v. Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term harassment . In P. Ramanatha Aiyar's Law Lexicon, 2nd Edn., the term harass has been defined thus: Harass.--'Injure' and 'injury' are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word 'harass', excluding the latter from being comprehended within the word 'injure' or 'injury'. The synonyms of 'harass' are: to weary, tire, perplex, distress tease, vex, molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit. The term harassment in its connotative expanse includes torment and vexation. The term torture also engulfs the concept of torment. The word torture in its denotative concept includes mental and psychological harassment. The accused in custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment. 26. In the said case, emphasizing on dignity, it has been observed: ...The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie case for the offences punishable Under Section 420 Indian Penal Code and Section 66A(b) of I.T. Act, 2000 read with Section 34 Indian Penal Code. It is submitted by Mr. Fernandes that Section 66A of the I.T. Act, 2000 is not applicable. The submission need not detain us any further, for Section 66A of the I.T. Act, 2000 has been struck down in its entirety being violative of Article 19(1)(a) and not saved Under Article 19(2) in Shreya Singhal v. Union of India (2015) 5 SCC 1. The only offence, therefore, that remains is Section 420 Indian Penal Code. The learned Magistrate has recorded a finding that there has been no impersonation. However, he has opined that there are some material to show that the Petitioners had intention to cheat. On a perusal of the FIR, it is clear to us that the dispute is purely of a civil nature, but a maladroit effort has been made to give it a criminal colour. In Devendra v. State of U.P. (2009) 7 SCC 495, it has been held thus: ...it is now well settled that the High Court ordinarily would exercise its jurisdiction Under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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