Indecent haste in Arrest and Investigation

[RAMPRAKASH SINGH]

I am an innocent person who is accused of having committed a criminal offence under sections 419, 420 of the I.P.C……… and sections 65, 65 of the I.T. Act……. The complainant had filed F.I.R. in the concerning Police Station in the name “Unknown”. The complainant hatched a criminal conspiracy to implicate me in the case just to save himself of his serious commissions and omissions. Through I.P. address they pin pointed my house and with their political sources involved the STF who approached me at my house and told that they just want to talk in the S.Ps. Office of the STF. Without giving me any notice they took me to the police station where the group of complainant and the police heavily tortured me physically & mentally and compelled me to give my confession and seized my two mobile phones. In the mean while the police raided my house where my old and ailing mother was alone and seized my computer, laptop etc. They did not have any lady police Constable during this process in violation of orders of the Hon’ble Supreme Court and also the Human Rights Commission. They arrested me and kept me in the Police Station during the night. Next morning I was produced before the Magistrate’s Court. My statement was not recorded by the Magistrate and just on the ground of the report of the police the magistrate dismissed my bail petition and it was said that bail can be granted by the Sessions Court as the case was registered under section 420 of the I.P.C. also and the lower court has no power to grant bail. Thus I was sent to jail where I had to stay for about two weeks since the date of hearing in the sessions court was changed several times due to some reason or the other. No reasons for sending me to jail was recorded by the Magistrate. Ultimately I was granted bail by the sessions court (ADJ). In the meantime the complainant and police also authorizes to publish article in several newspapers that the culprit has been arrested along with my photograph while the matter is still subjudice.
The Enquiry officer of the Crime Branch of the police exhibited indecent haste and without conducting forensic examination of the seized computer and without recording my statement, filed charge sheet. Presently, Sir, my query is:
(1) What are the options left for me now?
(2) Whether the charge sheet will be filed in the sessions court (ADJ) from where my bail application was granted or will it be filed in the Magistrate’s Court (Lower Court)? I’m planning to file a “Discharge Application” u/s 227 on solid grounds. Is this the right option? If yes, in which court I have to file my “Discharge Application” u/s 227 and at what time?
(3) My statement is still not recorded by magistrate. How can I record my statement and where should I submit this and at what time?
(4) What are the irregularities committed by law enforcing agencies till now and what action can be taken against them? Please specify sections.

[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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