Indecent haste in Arrest and Investigation

[Dr. Ashok Dhamija]

Offence under Section 420 IPC is punishable with imprisonment up to 7 years. It is a cognizable and non-bailable offence, in which police has the power to arrest without warrant from court under Section 41(1)(b) of the Cr.P.C. Legal power under this provision can be exercised by police by satisfying the conditions mentioned therein. There is nothing in this section that says that the police cannot arrest till a particular time after registration of the FIR.

Likewise, the police has powers to conduct search and seizure in a cognizable offence.

Since you were also produced before the court and remained in custody for several days, this would imply that judicial mind was also applied in respect of the arrest.

You’ll have to fight the case legally.

You can apply for discharge only after charge sheet has been filed. Before filing of charge sheet, you can file a petition before the high court for quashing of the FIR, if you feel that no case is made out against you even on the basis of whatever is mentioned in the FIR.

There is no requirement of formally recording your statement on merits of the case by Magistrate at this stage when the investigation is still going on. The statement of the accused is recorded during trial after completion of the prosecution evidence.

If you feel that police has committed any irregularities, you can approach the competent court. You’ll have to show all relevant papers to a lawyer to know about irregularities, if any, that might have been committed by police in the investigation. It is not possible for me to make comments on these aspects without seeing the papers of the case in detail. On the face of what you have mentioned, as I pointed out above, the police has the power to arrest and conduct search and seizure. Only a detailed scrutiny of the papers of the case can reveal irregularities, if any. So, please consult your local lawyer.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[RAMPRAKASH SINGH]

Dear Sir,
Please clarify the following points also:
(1) Presently my case is in the Session Court from where I was granted bail. Will I have to file my “Discharge Application” in the same Session Court or it will be moved from the Lower Court after filing of chargesheet by the police? Where the police will file the chargesheet: Session Court or Lower Court?
(2) After registering of the FIR, police have not understood the matter probably as it was related to IT and wrongly registered the case under 419, 420 of IPC and 65, 66..of IT act which is also against the “Cyber Crime Investigation Manual” of police itself. What action can be taken against this for registering the case under wrong sections and acts?

[RAMPRAKASH SINGH]

Is it true that only session court has the right to grant bail for cases registered under Section 420 of IPC and Lower court can’t do this?

[Dr. Ashok Dhamija]

A case under Section 420 IPC and other sections mentioned by you will be charge sheeted in Magistrate court and will be tried there. So, you have file discharge application in that court.

Cannot comment on wrong sections applied since I have not seen detailed FIR and other documents.

No. In a case under Section 420 IPC, even the Magistrate court has the power to grant bail.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[RAMPRAKASH SINGH]

Thanks a lot, Sir

[RAMPRAKASH SINGH]

It all started when a reputed central university publishes the personal information of all the shortlisted candidates for a key post e.g. their Name, Father’s Name, DOB, Email Id, Mobile Number, on its website without any password protection. This information gives an opportunity to someone to misuse the data and it affects me although I’m NOT guilty.
What action can be taken by me against the university and at what stage apart from Section 43A of The IT (Amendment) Act, 2008. Please suggest all the applicable law available in this regard in the Constitution of India.

[Dr. Ashok Dhamija]

It is basically a violation of privacy, which is recently declared as a fundamental right by SC. But, as far as I understand there is no separate Privacy Act so far which punishes such violation. At the most, it may perhaps be a tort, but for that detailed facts need to be examined by some expert.

Section 43-A of IT Act requires proof of wrongful gain or wrongful loss due to failure to protect data, then only it is applicable. See, their definition in Section 23 of IPC.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[RAMPRAKASH SINGH]

Sir, Can we apply violation of privacy, which is recently declared as a fundamental right by SC, in cases which originates in March, 2017?

[Dr. Ashok Dhamija]

I think it should be possible since such a judgment is supposed to be with retrospective effect, unless it is declared only to be having prospective effect.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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