CHHATRAPATI SAMBHAJINAGAR: The Aurangabad bench of Bombay high court has ordered the complainant policeman and investigation officer to compensate a man arrested under a repealed law, calling the action “illegal” and a violation of his rights to personal liberty.
The high court on Oct 23 ordered the investigating officer, police inspector Narendra Padalkar, to pay Rs2 lakh, and the complainant, constable Pandit Tare, to pay Rs50,000 to petitioner Ashwinkumar Sanap (43).
Bhushan Dhawale, who represented Sanap in court, said he was arrested on Aug 6 under sections 66A and 66B of Information Technology (IT) Act, despite Section 66A being declared unconstitutional in the 2015 Shreya Singhal vs Union of India judgment. The FIR, filed on June 27, 2024, also included Section 500 of IPC, a non-cognizable offence that requires a direct complaint to a magistrate. “It was after arresting Sanap and producing him before the magistrate, the police realised that 66A and 66B were not applicable. They subsequently added 67A of the IT Act,” Dhawale said.
The HC division bench, comprising Justice Vibha Kankanwadi and Justice SG Chapalgaonkar, observed that “this arrest is made at midnight, it is in total violation of the personal liberty enshrined under the Constitution of India”.
Criticising Padalkar, the HC noted that “it is beyond imagination that before the arrest, the investigating officer will not apply his mind, as to which are the sections that are invoked”.
It said, “The realisation of the wrong section, after the arrest of a person, would be a suicide attempt by an investigating officer, because he is bound to follow the law before and at the time of effecting arrest.”
The bench further noted that even the magistrate failed to exercise due diligence when presented with Sanap for custody. Citing the SC’s decisions in Arnesh Kumar vs State of Bihar and Satender Kumar Antil vs CBI, the HC observed that both magistrates and investigating officers were bound to assess if an arrest was justified before granting custody.
Highlighting issues of procedural negligence, the court said Sanap was held despite the fact that “Section 67-A of the IT Act was not at all attracted, taking into consideration the facts of the case”. The HC division bench noted that respondent Tare, Sanap’s former brother-in-law, lodged the FIR “with mala fide intention” because of a family dispute.
Sanap, who had separated from Tare’s sister, allegedly sent a defamatory WhatsApp message to a relative. The court observed that because WhatsApp “is end-to-end encrypted, the sender cannot intend for a private message to be public, unless the recipient forwards it”.
Addressing the implications for judicial integrity, the HC said, “We deprecate such kind of practice,” admonishing lower courts. It expressed concern over an observed trend of magistrates “passing mechanical orders.” The HC ordered that a copy of the judgment be sent to the superintendent of police, Hingoli, for review and potential action in accordance with SC guidelines in the case of Arnesh Kumar.