The midnight arrest of a Bangalore software professional on the grounds of defaming Shivaji on orkut.com and his being held for 50 days in Yerawada jail without trial has raised predictable concerns as this blog post indicates.

According to the report, the software engineer was arrested in Bangalore from his residence under the allegation that he was responsible for the posting of some information defamatory to Shivaji on a social networking site and was being arrested under the provisions of ITA 2000. He was released after 50 days on an application of a BJP activist with the information that Airtel had given a wrong lead related to the IP address query.
This was an Unpardonable Blunder and perhaps a show of gross negligence and arrogance on the part of the Pune Police and Airtel.

Now the blame is being placed on the law namely Information Technology Act 2000 (ITA-2000) which is being dubbed as “Draconian”. In the process the mistake of the Police and AirTel will get sidelined.

As readers are aware, there is a lobby in India which, ever since the baazee.com case is trying to get it diluted. Fortunately the efforts of this lobby was frustrated by the timely intervention of the Parliamentary Standing Committee and a disaster was avoided.

However the campaign against the Standing Committee is continuing particularly by some news paper columnists. Times of India and Economic Times are in the forefront of such a campaign and CNN-IBN and Business Standard have also chipped in occasionally. Some of these reports have been reported in these columns with the highlighting of why the reports are considered motivated and engineered by PR firms.

We need to reiterate this stand once again, starting with the baazee.com case. In the baazee.com case, the CEO of the company was arrested for vicarious liability when one of the users of the site committed an illegal act using the facilities of the site. The CEO was arrested and got bail only after 4 days.

We fully agree that this was an unwarranted arrest and the person was wronged. However we also consider that the subsequent attempts to lobby for a change of law culminating in the formation of an expert committee and its report etc were also wrong.

Naavi.org believes that he case was perhaps not properly represented on behalf of the company and if it is done, it is possible to get justice from the Indian judicial system in due course.

We do agree that it is a tedious process and there are many other individuals who are suffering like Mr Avnish Bajaj in different parts of the Country with false cases under ITA 2000 having been launched either by ignorance of the Police or under other influences. However, baazee.com has the capacity to fight their case upto the Supreme Court and if properly conducted, the Case can lay down certain important principles of Cyber Jurisprudence in India.

What baazee.com has to do for this purpose is to defend its case under the concept of “Due Diligence” and hope they will do so under proper counsel.
Now in the present case, the accusation is the defamation of Chatrapati Shivaji on Orkut.co. There is again no doubt that action was warranted to prevent misuse of Internet for such purposes by some misguided persons.

However this is a case of “Defamation” under IPC and not under ITA 2000. Unless the incident involves “Obscenity” there is no case under ITA 2000.
Further under Section 80 of ITA 2000, Police have only limited power of arrest which can be exercised “only in public places” . The relevant portion of the section is reproduced here for immediate reference. .

Section 80 of ITA 2000: Power of Police Officer and Other Officers to Enter, Search, etc

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any police officer, not below the rank of a Deputy Superintendent of Police, or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act.

The purpose and intent of this section is to take pre-emptive action to stop a crime about to be committed and to arrest a person red handed while he is in the act of committing a crime. This section does not give any powers to the Police to arrest a person at his house nor office.

Further the accused has to be produced before a magistrate within 24 hours after which it becomes the responsibility of the magistrate to decide if the arrest was proper.

It also gives powers only for offences under the sections of ITA 2000.

If the Police have charged the instant Offence under Section 499 of IPC for defamation, then it is not a cognizable offence under which arrest can be made.

The only other section that they might have used is “Causing unrest and disharmony” since there were some attacks on Cyber cafes following the outcry about the incident. This however was an anger expressed against Cyber Cafes for not preventing public to browse through Orkut.com which was sought to be banned and was not directly a charge against the techie.

It is therefore clear that the Police mis-interpreted the law and caused the arrest and it is not proper to term ITA 2000 as a “Draconian law”.

Further, the Police had no reason to arrest the person and deny him immediate bail since his arrest was not required to prevent any offence to be committed subsequently. They could have formally arrested and released him continuing the investigation and pressing trial in a court of law.

They could have also caused the arrested person to be detained in Bangalore itself so that he could have sought legal remedy.

The Pune Police appear to have therefore erred repeatedly in the case and have to take the blame and not the law. If the issue is not properly addressed by higher officials in the Police, there is a danger of the demand for withdrawal of Section 80 will mount. It is therefore necessary for Pune Police to take proper action and assure the public that such mistakes will not be repeated.

[We do however recall and acknowledge that Pune Police have in the earlier instances (eg: Citi Bank-Mphasis fraud) done an excellent job of protecting the honour of Indian police system in the international markets and the present criticism is not a reflection of our criticism of the entire Pune Police. It is only a reminder that good work needs to be done again and again and any aberration needs to be corrected effectively… Naavi]

Responsibility of AirTel

In the Pune Police blunder, there is a significant part played by Air Tel which appears to have given a wrong IP identification leading to the techie in Bangalore. This needs to be explained and Airtel should come up with a compensation to the victim voluntarily or compelled to pay compensation by the process of law.

The statement of the Police is sufficient to nail Airtel to a charge of gross negligence in a court of law and the victim may pursue the option of claiming compensation from Airtel.

Police may also proceed against Airtel for giving false information and misleading an investigation.

Human Rights Commission

Perhaps this is also a case in which the Human Rights Commission should take suitable remedial action. There are several such incidents of false Cyber Crime cases in which action can be invoked by the Commission since these cases which drag on for years cause untold misery and harm to the falsely implicated persons.

Suo-Moto Action by Supreme Court?

It is also possible in the instant case for the Supreme Court to take suo-moto cognizance of the lapses on the part of the Police and Airtel and provide a suitable relief to the affected individual. In such an event, the incident can be used to properly define the intent of Section 80 of ITA 2000, procedures to be followed in case of inter-state arrest when the victim is to be moved out of his place of residence making it difficult for him to get legal assistance.

Naavi Nov 10, 2007

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