Case: Dr. Rini Johar &amp; Another Vs. State of M.P. &amp; Others

1. 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.or 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 8th 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, ‘thewas 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 followingstate 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 Sisodia2. R.R. (Lady) Ishrat Praveen Khan3. RR (Lady) ValariOn 21.11.2012, Dy. S.P. State Cyber Police, Bhopal proceeded to pass the followingstate 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.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 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 –(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.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 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.

Reasoning:
State of M.P. v. Shyamsunder 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 asThe 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 welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. Thest be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.In the present case, it can be stated with certitude that no ingredient of Section 420 IPC is remotely attracted. Even if it is a wrong, the complainant has to take recourse to civil action. The case in hand does not fall in the categories where cognizance of the offence can be taken by the court and the accused can be asked to face trial. In our considered opinion, the entire case projects a civil dispute and nothing else. Therefore, invoking the principle laid down in State of Haryana v. Bhajan Lal (1992 Supp. (1) SCC 335), we quash the proceedings initiated at the instance of the 8th respondent and set aside the order negativing the prayer for discharge of the accused persons. The prosecution initiated against the petitioners stands quashed.