TaxTMI 
TaxTMI 
2016 (6) TMI 1378
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.... 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 gri....
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....te, 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. In dignified 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 Code of Criminal Procedure 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 r....
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.... 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 Indian Penal Code. Based on the said preliminary enquiry report, FIR No. 273/2015 dated 27.3.2015 has been regi....
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..... Thereafter, Shri Rini Johar had called up the Inspector General of Police, State Cyber Police Shri Anil Kumar Gupta. I and my team had taken Miss Rini Johar and Smt. Gulshan in our custody. I and Constable Miss Hemlata Jharbare conduced robe search of Miss Rini Johar and Smt. Gulshan Johar. Nothing was found on their body. 14. He has also recorded the statement of Devender Sisodia, Ms. Vallari Upadhyay, Ms. Hemlata Jharbare and thereafter recorded his findings. The findings arrived at in the preliminary enquiry read thus: 24. Finding of the preliminary inquiry: It was found during the preliminary enquiry that Crime No. 24/12 had been registered after the inquiry of one written complaint of the applicant Shri Vikram Rajput, but this complaint inquiry report during the investigation of the offence has been kept as the relevant evidence. The crime was registered on 27.11.2012 Under Section 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 Rs. 5.00 lakh, they did not supply the camera etc and they supplied the defective articles. This sale-purchase ....
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....any of their relatives and friends. It has become clear from the statements that when both the women were arrested physically they were brought to PS Banwari Pune, where the arrest memo was prepared. There is the signature of Shri Amol Shetty as the witness of the seizure memo. Shri Deepak Thakur has stated in his statement that the handwriting of the seizure memo is of the constable Shri Indrapal. Shri Indrapal did not go as a member of the arresting persons to Pune. The seizure memo does not have the signature of Amol Shetty as well, which proves prima facie that the seizure memo was not prepared on 27.11.2012 in Pune. The report No. 29/12 dated 27.11.2012 of seeking police help in PS Banwari is recorded, but no information is recorded at the police station that MP Police are taking by arresting these citizens with them. As a result, the information of the arrested 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 d....
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....r Trivedi (1995) 4 SCC 262 the Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines read as follows: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, 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 we....
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....icus Curiae, in a tabular chart has pointed that none of the requirements had been complied with. Various reasons have been ascribed for the same. On a scrutiny of enquiry report and the factual assertions made, it is limpid that some of the guidelines have been violated. It is strenuously urged by Mr. Fernandes that Section 66A(b) of the Information Technology Act, 2000 provides maximum sentence of three years and Section 420 Code of Criminal Procedure stipulates sentence of seven years and, therefore, it was absolutely imperative on the part of the arresting authority to comply with the procedure postulated in Section 41A of the 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 cons....
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.... (a) to (e) of Clause (1) of Section 41 Code of Criminal Procedure. 21. In the said authority, Section 41A Code of Criminal Procedure, which has been inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) was introduced and in that context, it has been held that Section 41A Code of Criminal Procedure makes it clear that where the arrest of a person is not required Under Section 41(1) Code of Criminal Procedure, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused 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....
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...., we shall proceed to the facet of grant of compensation. The officers of the State had played with the liberty of the Petitioners and, in a way, experimented with it. Law does not countenance such kind of experiments as that causes trauma and pain. In Mehmood Nayyar Azam v. State of Chhattisgarh (2012) 8 SCC 1, while dealing with the harassment in custody, deliberating on the concept of harassment, the Court stated thus: 22. At this juncture, it becomes absolutely necessary to appreciate what is meant by the 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 ....
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....iae would urge that it was a case for discharge but the trial court failed to appreciate the factual matrix in proper perspective. As the matter remained pending in this Court for some time, and we had dealt with other aspects, we thought it apt to hear the learned Counsel for the aspect of continuance of the criminal prosecution. We have narrated the facts at the beginning. The learned Magistrate by order dated 19.2.2015 has found existence of prima 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 ....