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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R. DEVDAS, J.
Sri. Sunil Bharti Mittal, Chairman & Ors. - Petitioners
Vs.
Sri. N. Naresh Kumar & Ors. - Respondents
Criminal Petition No.8249 of 2014
Decided On : 11-12-2019
Criminal Procedure Code,1973 - Section 482 - Information Technology Act, 2000 - Sections 72-A and 66-A - Quash - Punishment - Case of complainant that accused No-5 is wife of complainant and there is a family dispute between complainant and accused complainant had filed divorce petition against his wife and same was pending consideration before Family Court at - It stated in complaint that after dispute arose between husband and wife complainant changed his earlier mobile phone number and was using a different number- It is alleged by complainant that wife colluded with petitioners herein to collect complainant’s call details between - It is stated in complaint that complainant received certain calls from anonymous persons enquiring about complainant’s identity and whereabouts since complainant is said to have lodged a complainant before Commissioner -Held, Court then as provided Magistrate is required to postpone issue of process against accused or enquire into case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for purpose of deciding whether or not there is sufficient ground for proceeding - Court finds that on plain reading of complaint it evident that offences sought be made out against petitioners who are Service Providers are not attracted- As rightly pointed out by Senior counsel service providers are duty bound to give information whenever required by a Police Officer who is investigating into matter and Senior counsel is right in his submissions that if such request is made by Police Officer and if local Branch Officer does not disclose information then he may be liable for criminal action and may liable for penal consequences- Magistrate was duty bound to look into these aspects and moreover petitioners who are Chairman and Managing Director of Service Provider company sitting at New Delhi are in no way involved in day- today activities of local branches across country - Case Central Bureau of Investigation reported Apex Court has held that when a Company is accused its Directors can be roped in only if there is sufficient incriminating evidence against them coupled with criminal intent or statutory regime attracts doctrine of vicarious liability- Therefore unless and until there is incriminating evidence against Directors of Company coupled with criminal intent criminal proceedings cannot be initiated against Directors of a Company- It is clear from complaint that no such allegation either of criminal intent or any incriminating evidence to allege personal motive against petitioners herein are found - Order accordingly
ORDER :
This petition is filed under Section 482 of Code of Criminal Procedure, with a prayer to set aside the order of the Magistrate, taking cognizance and to quash all further proceedings in C.C.No.66882/2014 pursuant to PCR No.117/2013 on the file of the Addl. Chief Judicial Magistrate Bangalore Rural District, Bangalore for the offences punishable under Sections 406, 504, 506(B) IPC and Sections 72-A and 66-A of Information Technology Act, 2000.
2. A private compliant under Section 200 Cr.P.C. was lodged by the Respondent No.1 stating that the Complainant is a customer of ‘Airtel’ Service Provider for the prepaid sim-card of the complainant. It is the case of the complainant that accused No.5 is the wife of complainant and there is a family dispute between the complainant and accused No.5. The complainant had filed divorce petition against his wife and the same was pending consideration before the Family Court at Bengaluru. It is stated in the complaint that after the dispute arose between husband and wife, the complainant changed his earlier mobile phone number and was using a different number. It is alleged by the complainant that the wife colluded with the petitioners herein to collect the complainant’s call details between 1/10/2012 to 09/10/2012. It is stated in the complaint that the complainant received certain calls from anonymous persons enquiring about the complainant’s identity and whereabouts since 10/10/2012. The complainant is said to have lodged a complainant before the Commissioner of Police on 25/10/2012 and before the Joint Commissioner of Police and jurisdictional Police, Soladevanahalli.
3. The complainant further states that in this regard the complainant communicated through several emails between 27/10/2012 to 03/11/2012 to petitioners herein. It is also stated that complainant had several telephonic conversations with petitioner No.4 who was the then Nodal Officer of Bharati Airtel Limited, No.55, Divyashree Towers, Bannerghatta Main Road, Bangalore-29.
4. The complainant seems to have raised a issue with the petitioner No.4 herein that they had disclosed his call details to 3rd parties without the consent of the complainant. However it is also stated in the complainant that petitioner No.4 denied having received any such complaint and service provider would not disclose the call details without the authorization or the consent of the sim card holders. In short, the allegation made by the First Respondent complainant is that the petitioner’s being service provider, have given call details of the complainant without his consent and therefore the accused persons are liable for punishment Under Sections 72, 72-A & 66-A of Information Technology Act, 2000 and also under section 406 of IPC.
5. On the receipt of the complainant the Magistrate referred the complaint to the Soladevanahalli Police for investigation and report . Pursuant to the same, the Jurisdictional Police Registered a case in crime No.65/2013 for offences punishable under sections 406, 503, 506, 507 and 34 of IPC and under sections 66-A, 72 and 72-A of Information Technology Act, 2000 against the petitioners herein and wife of the complainant.
6. On investigation, the investigating officer submitted a ‘B’ final report to the Magistrate. The Magistrate on the basis of the protest petition filed by Respondent No.1, took cognizance of the offences in the complainant and thereafter posted the matter for recording of sworn statement of the complainant. After recording of the sworn statement of the complainant, the Magistrate directed the Assistant Commissioner of Police(North Division) Bangalore to further investigate into the matter and submit a report to the court. The Assistant Commissioner of Police submitted a report stating that there is no truth whatsoever in the allegations made by the complainant and the complaint is motivated, seeking to wreck vengeance against the wife of the complainant.
7. Despite two reports, the Magistrate passed an o
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