The Sikkim High Court reminded the Prosecuting Agency that it has under Section 172(2) of the Cr.P.C unfettered powers to examine the entries in the Case Diary.
The matter has its genesis in an FIR lodged by one Tseten Tashi Bhutia, informing the Station House Officer that a fake Facebook account had been created in the name of one Simran Gurung and posts uploaded which had aroused hatred against the Complainant, put his life at risk, defamed him and created communal hatred and tension between the Bhutia and the Nepali communities in Sikkim.
Advocate Nawin Kiran Pradhan and Advocate Dhiren Subba appearing for the Petitioners contended that pursuant to the FIR lodged by Tseten Tashi Bhutia, which was registered by the Sadar PS under Sections 153A/505(1)(2)/ 506/120B of the Indian Penal Code, 1860, at about 10 a.m., four Policemen from the Sikkim Police of whom one was the Respondent (I.O.) and Respondent (PI, Criminal Investigation Department) barged into the Petitioners’ home, manhandled his family members including his aging father and forcefully took the Petitioner into their custody.
They submitted that the same afternoon at about 12.30 p.m. the same Police Officials returned to the Petitioners’ house and conducted a search therein without so much as furnishing a search warrant. The Police then proceeded to seize one Laptop, one Vodafone SIM card, one Kingstone 4 GB HD Card and one Pen Drive. The family of the Petitioners were not informed about his whereabouts and he was brought to the Sadar PS while the Arrest Memo came to be handed over to his family members only on the next date. The Respondent then sought Police custody of the Petitioner and the Judicial Magistrate, at Gangtok, remanded him to police custody.
Sudesh Joshi, Additional Advocate General appearing for the respondents, contended that on lodging of the FIR and its registration, investigation commenced to trace the identity of the person using the name ―Devika Chettril. A constant vigil was kept over the Facebook account of Devika Chettri via Messenger and Chats/Video Chats. The entire operations were being carried out on Facebook for which Internet Protocol Data Records (IPDR) was requisitioned.
He submitted that ultimately, on arranging Know Your Customer (KYC) from the Internet Service Provider, the Prosecuting Agency learned that the connection was registered in the name of the Petitioner No.1 who was using Devika Chettri’s account. The said Petitioner was thus identified as the person uploading the mischievous posts.
The single judge bench of Justice Meenakshi Madan Rai said that it was observed by the Supreme Court that Section 41A made it clear that in all cases where the arrest of a person is not required under Section 41(1) Cr.P.C. the Police officer is required to issue Notice directing the accused to appear before him at a specified place and time.
The court concluded that the Magistrate was circumspect while granting remand in police custody and after taking due caution and in compliance of Arnesh Kumar ratiocination has permitted remand being satisfied that custodial interrogation was necessary suffice it to state that the Order is brief but encompasses requirements of the directions laid out in Arnesh Kumar and hence due compliance thereof.
In light of the above discussions, the court was of the considered opinion that the directions in Arnesh Kumar have been duly complied with by the Investigating Officers and consequently the Petitioners in both matters supra are thus not found entitled to any of the reliefs claimed.
Case title: Rajesh Rai and Another v/s State of Sikkim and Others
Citation: WP(C) No.34 of 2020