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SUPREME COURT OF INDIA
DIPAK MISRA, SHIVA KIRTI SINGH, JJ.
Dr. Rini Johar & Anr. – Petitioners
Versus
State of M.P. & Ors.– Respondents
WRIT PETITION (CRIMINAL) NO. 30 OF 2015
Decided On : 03-06-2016
(b) Code of Criminal Procedure, 1973 – Section 41-A to 41-C – Guidelines laid down by Supreme Court in (1997) 1 SCC 416 – Petitioners charged under section 66-A(b), IT Act, 2000 and section 420, IPC – Mandatory to follow procedures in section 41-A – Not followed – No notice issued to petitioners – Procedures of arrest and seizure grossly violated. (Para 19, 22)
AIR 1980 SC 470; (1994) 4 SCC 260; (1997) 1 SCC 416; (1993) 2 SCC 746; (1995) 4 SCC 262; (2014) 8 SCC 273 – Relied upon
(c) Constitution of India – Article 21 r/w section 41, Code of Criminal Procedure, 1973 – Petitioners arrested without following procedures as per statutory rules or Supreme Court guidelines – Jeopardizing their dignity – The two ladies have been arrested without following the procedure and put in the compartment of a train without being produced before the local Magistrate from Pune to Bhopal – Petitioners’ liberty curtailed in violation of law. (Para 23)
(2015) 1 SCC 192 – Relied upon
(d) Constitution of India – Article 21 – Violation of Article 21 and humiliation to the petitioners – Also violation of sections 41 and 41-A CrPC and guidelines of D.K. Basu case – Attracting public law remedy – Compensation of Rs.5,00,000 to each petitioner directed. (Para 27)
(1993) 2 SCC 746; (2012) 8 SCC 1; (2006) 3 SCC 178; (2012) 1 SCC 748 – Relied upon
(e) Criminal trial – Petitioners charged u/s 420 IPC and section 66-A(b), IT Act, 2000 – Section 66-A struck down in its entirety by Shreya Singhal case – FIR showing that the dispute is purely of civil nature, but given a criminal colour – No ingredient of section 420 IPC even remotely attracted – All proceedings quashed. (Para 29)
(2015) 5 SCC 1; (2009) 7 SCC 495; 1992 Supp. (1) SCC 335 – Relied upon
Facts of the case:
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.
The informant, respondent no.8 had sent an email to the company for purchase of machine Aura Cam, 6000, which is an Aura Imaging Equipment, in India. Upon a reference by the Company the respondent contacted petitioner no. 1 visited her at Pune and 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.
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) and Section 66-D of the Information Technology Act, 2000 was registered against the petitioners by Cyber Police.
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.
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.
Finding of the Court:
Petitioners’ arrest was in violation of law and the their dignity was jeopardized.
Result: Writ petition allowed. All proceedings quashed.
JUDGMENT
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 th 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) and 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
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