#Kerala Now, a Facebook ‘like’ leads to sedition charges #ITact #WTFnews


Jan 16, 2013, 04.13AM IST TNN[ Mahir Haneef ]

It is alleged that Ali clicked ‘like’ on a Facebook page titled ‘I Love Pakistan‘.
KOCHI: Clicking on the ‘like’ button on Facebook has landed K H Muhammed Ali, a native of Eloor and Dubai municipality employee, in deep trouble. He has been charged with sedition and insulting national honour.The only crime that Ali remembers doing is clicking ‘like’ on the Facebook profiles of friends, including a few Pakistanis, he earned in Dubai.Now, the Kochi police have booked him for sedition, sending offensive message (66A of Information Technology Act, 2000), and for insulting the national flag (section 2 of Prevention of Insults to National Honor Act, 1971).In the FIR filed in September 2012, it is alleged that Ali clicked ‘like’ on a Facebook page titled ‘I Love Pakistan’ and that a picture showing a dog clothed in the national flag was seen in his Facebook profile page.

On Tuesday, Ali filed a petition at the Kerala high court, through advocate K K Ashkar, challenging the FIR registered by the Eloor police.

Ali has contended in the petition that his Facebook account doesn’t bear the message ‘I Love Pakistan’, doesn’t have any pictures showing disrespect to the national flag, nor has sent any offensive message or pictures showing disrespect to the national flag.

He further pointed out that registering of FIR in cyber cases without a pre-investigation inquiry by an investigative agency with expertise in information technology is against the rules stipulated in the cyber crime investigation manual, the only such manual in India that was released by the Union home secretary.

After police registered the FIR alleging sedition, he and his family have been facing social stigma, Ali’s petition said. His family has been isolated by the local community and relatives and they are being treated like traitors. His wife and younger child have been traumatized by the ordeal, the petition stated.

Kochi city police commissioner arrived at a hypothetical inference that amounts to character assassination, the petitioner alleged.

The petitioner has cited the commissioner’s remark, which is extracted in the FIR, stating “as petitioner was working in UAE and his remark in the Facebook ‘I Love Pakistan’ and his close relation with Pakistanis in UAE may indulge in antisocial activities”. Such a casual statement prejudicially affects the liberty of the petitioner and has caused mental trauma, social ostracism, and persecution, it is alleged.

THE PETITION IS BELOW

THIS IS CLASSIC EXAMPLE OF ABUSE OF IT ACT BY POLICE & MUSLIM PREJUDICE & STATE LED INJUSTICE
BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM

W.P.(C) No. 1436 of 2013

Petitioner:
K.H. Muhammed Ali, aged 42 years,
S/o. Hameed,
Residing at Kanappilly House, Eloor North,
Udyogamandal – 6883501,
Now working at Dubai Municipality, Post Box No. 36701,
Dubai, United Arab Emirates.

Vs.
Respondent/ Respondent:
1. State of Kerala,
Represented by the Chief Secretary,
Government of Kerala,
Thiruvananthapuram-695001.

2. The Secretary, Dept. of Home Affairs,
Government of Kerala,
Thiruvananthapuram – 69500.

3. Sub Inspector of Police,
Eloor Police Station, Udyogamandal. P.O,
Pin- 683501.

4. Circle Inspector of Police,
Ernakulam Town, North Circle,
Cochin-682018

5. The District Police Chief,
Kochi City,

6. Sub Inspector of Police,
Cyber Crime Investigation Cell, Ernakulam

WRIT PETITION FILED UNDER ARTICCLE 226 OF THE CONSTITUTION OF INDIA

The Petitioner most respectfully submits as follows:

1. The petitioner herein is a Non Resident Indian citizen who has been working as welder at Dubai Municipality in United Arab Emirates since 21.01.2009. He has been in U.A.E since 27.07.2005 for earning daily bread for him and his family lives herein Eloor in Ernakulam district of Kerala. He is the sole bread winner of his family consisting of wife, aged and cardiac ailment suffered mother and two children aged 10 and 7 years. Petitioner is a believer of Communist ideology and was a member of CPI (M) and its youth wing DYFI and a sympathizer of Left Democratic Front. He was actively engaged in cultural and social activities and library movement in his home town Eloor prior to his emigration to UAE for employment. He was an office-bearer of the public library situated in Eloor. His family has the tradition of left sympathizers and patriotic secular social outlook. He had concern for ecology and environment, especially being a resident of Eloor, which was declared to be India’s 24th Critically Polluted industrial cluster by Ministry of Environment and Forest.
2. Petitioner’s family was residing in a rented house till 26.08.2012 on which date petitioner completed construction of his house in the property he inherited, at Eloor North. He found finance for the construction of his house having plinth area of 1250 Sq. feet by advancing home loan to the tone of Rs.10 lacs from State bank of Travancore,Udyogamandal and Rs.7 lacs from Dubai Islamic Bank. In the early week of July 2012, one police officer visited petitioner’s rented house in Eloor and enquired about petitioner’s job, salary, whereabouts and estimate cost of construction of his house and its source. It was told by the police that it is part of usual enquiry about the Non Resident Keralites who are employed abroad. But after that, policemen from Special Branch and Crime Branch used to visit petitioner’s house intermittently enquiring about the whereabouts of petitioner and his expected arrival in home. Petitioner’s mother who was a chronic patient suffering from cardiac ailments, had distress following the intermittent visit of policemen enquiring about the son who toils in the desert for livelihood. His wife and younger child has developed mental trauma. Thereafter one policeman from Special Branch contacted petitioner over phone from a cell no. 9497936163 and enquired about his job, construction of house and its source of finance and passport details. Petitioner insisted the policeman for the reason why he and his family has been repeatedly quizzed by the police and what wrong he has committed for persecuting him and his family and go through fear psychosis. Then he was told that Dy S.P of Police, Crime Branch CID, Ernakulam has received a complaint from Standing Council of Trade Unions, Ernakulam against Mr. Purushan Eloor and his organisation Periyar Malineekarana Virudha Samithi alleging link with anti national forces and some pictures showing disrespect to national flag and a message ‘I Love Pakistan’ were produced alleging to be taken from facebook account of the petitioner, describing to be the close friend of Purushan Eloor to buttress their allegation against him.
3. Petitioner has neither facebook account bearing message that “I Love Pakistan” and pictures showing disrespect to national flag of India nor sent any offensive message or pictures showing disrespect to national flag of India and national honor to anyone using internet or any communication devices. On 20.09.2012, the Sub Inspector of Police, Eloor (3rd respondent herein) registered Crime No. 923/2012 by lodging First Information Report against petitioner upon a complaint made by Kochi City District Police Chief (5th respondent herein) dated 10.09.2012 which is extracted in the 4th page of FIR. Certified copy of the First Information Report in Crime No.923/12 registered against the petitioner is produced herewith and marked for reference as Exhibit-P1. By Ext.P1, the offences registered against the petitioner are under section 124A IPC, section 66A, Information Technology Act and section 2 of Prevention of Insult to National Honour (PINH) Act.
4. It is a trite proposition that a person, who is named in FIR as an accused, suffers social stigma. If an innocent person is falsely implicated, he not only suffers from loss of reputation but also mental tension and his personal liberty is seriously impaired. After lodging Ext.P1 FIR, the petitioner’s family has been isolated by the local community and relatives, as so grievous offences are alleged against the petitioner like sedition and insult to national honour. Petitioner and his family have been treated like traitors and betrayers of nation by local public as petitioner has been named as accused in Ext.P3 with allegation of sedition. His wife and younger child has developed mental trauma. Information Technology Act, 2000 deals with crimes using computer and internet and computer related crimes, but it doesn’t prescribe the method and mode of cyber crime investigation which is still in nascent stage in India and widely abused by police by inadequate experience and knowledge in information technology and internet. There are divergent precedents regarding conducting preliminary enquiry before registering FIR by an investigation officer. But in cyber crimes, offences are committed on virtual cyber space, it not easy to identify the author only by the name reflected in the web as of real world crimes. Hence the manual of cyber crime investigations prepared by International Telecommunication Union and the only Cyber Crime Investigation Manual in India released by Home Secretary, Government of India being prepared by Data Security Council of India and NASSCOM, discuss about the necessity of a pre-investigation inquiry by an investigative agency having expertise in information technology, lest liberty and reputation of netizens and citizens would be under peril being foisted in false accusations.
5. The allegation against the petitioner in the complaint is based on mere surmises and conjectures and made in vague, casual and cavalier manner with grave accusations that may peril the liberty of the petitioner. Honorable Supreme Court admonished the investigative agencies in dealing with charges of sedition that graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with. It is alleged in the complaint of the 5th respondent extracted in FIR that petitioner had remarked in his Facebook that one of his favorite messages is that “I Love Pakistan which has been seen from somebody’s facebook. As per the statement, 5th respondent has not seen such remark in petitioner’s facebook, but it was seen from somebody’s facebook. Who is the said somebody who has seen such remark in petitioner’s facebook is not mentioned. The 5th respondent went to the extent to arrive at a hypothetical inference that amount to character assassination of the petitioner that “as petitioner was working in UAE and his remark in the facebook “I Love Pakistan’ and his close relation with the Pakistanis in UAE may indulge in anti-social activities”. Without verifying whether such remarks appear in the facebook account of the petitioner and the facebook account alleged to have been seen from somebody’s facebook is really belonged to petitioner, by conducting a scientific and reliable preliminary inquiry by Cyber Crime Investigation Cell or any agency having expertise in investigation of crimes regarding information technology, and without inquiring and finding whether petitioner has close relationship with Pakistanis in UAE, how can a police officer who is none other than the chief of Kochi City Police, make such a comment in a casual and cavalier manner resulting in character assassination of petitioner and that too may prejudicially affect the liberty of the petitioner.
6. The honorable apex court upheld that it is the mandate of Art.21 which requires a police officer to protect a citizen from baseless allegations. The scheme of the Criminal Procedure Code is that after the police officer records an FIR under section 154 Cr.PC, he has to proceed to investigate under section 156 Cr.P.C and while investigating, the police officer has power to arrest under section 41. As two of the offences lodged against the petitioner are non bailable offences and of grievous character such as sedition and insult to national flag, the personal liberty of the petitioner would be at casualty. The 3rd respondent arbitrarily lodged FIR against the petitioner mechanically on the direction from his superior officer to register a case and without applying mind whether the allegations in the complaint of 5th respondent even if it taken its face value make out offences leveled against the petitioner. In this state, there is a specially trained police wing having expertise in information technology, namely Cyber Crime Enquiry Cell to investigate into cyber crimes. The action of the 5th respondent is highly arbitrary to direct the 3rd respondent to register case against the petitioner involving offence under Information Technology without referring it to the Cyber Crime Enquiry Cell.
7. It is learnt that 5th respondent made the said complaint directing the 3rd respondent to register case against the petitioner relying on the facebook pages showing remark “I Love Pakistan” and pictures showing disrespect to national flag produced by Standing Council of Trade Unions, Ernakulam alleging to be taken from petitioner’s facebook account and treating the same as gospel of truth. Petitioner has no facebook account bearing such message and pictures showing disrespect to national flag and in the facebook account that petitioner holds, trade union standing council or its members are not in the friends’ list to access his facebook account, hence the act is punishable under section 43 (a) & (b) read with section 66 of Information technology Act. Section 156 of the Code empowers the 3rd respondent to investigate cognizable case and section 41 empowers to arrest any person who has been concerned in any cognizable offence or agisnst whom reasonable complaint has been made. All three offences leveled against the petitioner are cognizable offences and two of them are non bailable offences. As the actions of the police including 3rd and 5th respondents showing mechanical proceeding with the case, it is likely to be proceeded with investigation of Ext.P3 and on that instance petitioner would be deprived of his liberty.
8. On 18.11.2012, The Hindu reported about a delegation led by Prakash Karat, General Secretary of the CPI(M) delegation to meet President Shri Pranab Mukherjee regarding targeting and persecution of scores of Muslim youth in terrorism related cases. The delegation made memorandum expressing their strong exception and anger thus”
“Grave miscarriage of justice to scores of Muslim youth who were and are being wrongly arrested and charged in cases related to terror attacks in different parts of the country. In some cases, these young men have been incarcerated for ten to fourteen years as undertrials and then finally acquitted by the courts as being innocent. Several reliable groups of concerned citizens and organizations who have collected the details of these cases, have revealed how the court judgements themselves have strongly indicted the investigation agencies for the biased mentality against the Muslim youth and in several cases the manipulation and presentation of concocted evidence against innocent young men. It would appear that the investigation agencies are more driven by the requirement to show “results” in their investigation rather than to ensure that it is the actual culprits who are caught.
Muslim youth are the most vulnerable targets today. The draconian provisions of the Unlawful Activities (Prevention) Act are used to deny the normal processes of justice, while there is no time bound procedure for the judicial processes. There is a growing feeling of fear and apprehension on the one hand and anger on the other that innocents are being implicated. Young lives have been destroyed, families stricken, forced into social isolation, driven into debt to pay the huge expenditures in legal fees —the terrible conditions caused by State led injustice.
As an illustration, the cases of the four young men Md. Aamir from Delhi, Syed Maqbool from Srinagar, Wasif Haider and Mumtaz Ahmed from Uttar Pradesh are presented before you. They were arrested arbitrarily when they were just eighteen or nineteen years of age, implicated in dozens of cases, incarcerated for over ten years and each one of them was, as held by the courts, innocent. They are today without jobs, considered unemployable, with dark and uncertain futures.
While no quarter can be given to any individual or group which is responsible for dastardly terror attacks, the arrest of innocent Muslim youth has reached serious dimensions which require immediate attention. It is a blot on the principles of secular democracy. At the same time, the arrest of innocent people means that the actual culprits go free.—the terrible conditions caused by State led injustice.
9. The 5th respondent made fanciful allegation merely based on hypothetical deductive thinking that may snatch away the liberty and reputation of an innocent citizen like petitioner. Petitioner has no facebook account having remark that “I Love Pakistan” is his favorite messages and pictures showing disrespect to National flag. Petitioner has reasonable apprehension that he has been tagged to be a scapegoat only because his name reflects a religious identity against which investigative agency has prejudice. It is learnt that 5th respondent made such complaint upon pictures produced by the Standing Council of Trade Unions Ernakulam in order to wreck vengeance with environmental activists and to indict them with accusation of link with anti national forces. If the police officer would register FIR without application of mind on any such seditious pictures alleged to be taken from the facebook account of someone, without verifying the authenticity and author of such online postings by a duly enquiry and procedure applying information technology by a specially trained police like Cyber Crime Enquiry Cell or any other agency having expertise in information technology, liberty and freedom of citizen would be at jeopardy and our republic made on Socialist, Secular and democratic pillars would slip into one made on the peels of banana.
10. As well discussed by honorable apex court in Lalita Kumari & others v. Govt. of U.P & others, 2012 (4) SCC 1 and in series of many other judgments, recording of FIR is not an empty formality upon receiving a complaint. In the petitioner’s case, Ext.P1 FIR has been lodged against him alleging offences of sedition, insult to national honour and sending offensive message under Information Technology Act. The allegation of all offences was based on his alleged postings in his facebook account claimed to be seen by somebody. For proving the accusation that it has to be verified whether the original counterpart of the printout produced before the police by somebody really exist in facebook, the online social networking website. And if it really exists in facebook, it has to be ascertained from which e-mail account that facebook profile was logged in and that the IP address of the computer by which such impugned postings and pictures were made in the facebook profile and that whether petitioner is the custodian or owner of the computer having that IP address and e-mail ID. For these enquiry and findings it requires an investigative agency like Cyber Crime Investigation cell having trained expertise in Information Technology and it requires much correspondence with Facebook, the e-mail service provider with which facebook was used to log in, the internet service provider, foreign government, if the computer system situates in another country. In normal practice it requires 6 to 10 months to complete this preliminary enquiry. But the respondents avoid the said pre-investigation enquiry applying information technology before registering Ext.P1 against petitioner. After registering FIR, the crime was forwarded to Circle Inspector, Ernakulam Town North Circle (4th respondent herein) for investigation. It is learnt that 4th respondent sought pictures in the facebook account of the petitioner from Cyber Crime Enquiry Cell, Ernakulam (6th respondent herein) on 22.09.2012. After that scientific cyber crime enquiry, if it’s found that impugned postings and pictures are not created by petitioner in his facebook profile, how the mental trauma, social ostracism and persecution suffered by petitioner and his family by being named as accused in a FIR of grave crime like sedition, would be made good by the police and the state? If petitioner is arrested and detained in the meanwhile during the said cyber crime enquiry is pending, how its consequential loss of his reputation, liberty and livelihood will be compensated by the state and police? Whether the police would be satisfied in throwing petitioner and his family to street of disrepute and penury?
11. Anyone can create any number of facebook profile by any name, even though terms and conditions of facebook user agreement restricts creating account for anyone other than the user and creating of more than one personal account. There exist more than 50 facebook profiles in the name of the opposition leader Sri.V.S. Achuthanandan and more than 10 facebook profiles exist in the name of the Chief Minister Sri. Oommen Chandy. It is not sure whether all accounts or any of the accounts were created by them. If one make a complaint that one of the facebook profile bearing the name of Chief Minister or Opposition Leader contains some seditious post or photos and produces a printout of the same before the police, whether the police officer would mechanically register FIR against Chief Minister or Opposition Leader alleging offence of sedition. If such FIR is lodged what would be its results, newspapers and Televisions screens across the country will flash with scrolling news of them being named as accused. If the investigation officer is having a prudent mind he would not register FIR on such complaint as it would have unforeseen ramification to the liberty and reputation of the person alleged with the offence as the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. The police were discriminatory in their action against petitioner in lodging Ext.P1 denying the petitioner equality before law violating Art.14 of the Constitution of India.
12. The 3rd respondent lodged FIR against the petitioner alleging offences punishable under sections 124A of Indian Penal Code, 66A of Information Technology Act and 2 of Prevention of Insult to National Honour Act. The contents of the FIR is thus:
“dÉÄß §LcX ØßxßØY ¦ÏßøßæA ¿ßÏÞæa çËØíÌáAßW §LcX çÆÖàÏ ÉÄÞµæÏ ¥ÉÎÞÈßAáK ÄøJßW ¥ÕçÙ{ȺßdÄ¢ dÉÆVÖßMߺîᢠ“I Love Pakistan” ®KÄÞÃí Äæa §×í¿æMG ØçwÖæÎKᢠµÞÃߺîí çËØíÌáAßW çø¶æM¿áJßÏᢠÎxᢠæºÏñí dÉÄß çÆÖÕßøái ÕßµÞø¢ dɵ¿ßMߺîᢠ¥Äí ÎxáUÕVAí dÉçºÞÆÈ¢ ÈÜíµÃæÎKâU ©çgÖçJ޿ᢠµøáÄçÜ޿ᢠµâ¿à dÉÕVJßºî µÞøc¢.”
13. It can be seen that the 3rd respondent lodged FIR without seeing and verifying the facebook account of the petitioner and the pictures showing disrespect to national flag alleged to be created by petitioner in his facebook account, but mechanically upon the direction of the 5th respondent. The allegations in the complaint of 5th respondent upon which Ext.P1 FIR has been lodged are vague and cryptic on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioner. The pictures and remarks alleged to be made in the facebook account of the petitioner are referred to in the complaint to indict the petitioner of the offences alleged in Ext.P1 were stated to seen from the face book account of somebody. It is not stated who is the said somebody who has seen impugned objectionable pictures in petitioner’s facebook account and brought the attention of the police to the alleged offence. The whole allegation in the complaint is based on an indirect hearsay. The act of the 3rd and 5th respondent is highly arbitrary to proceed against the petitioner on mere hearsay and that too alleging grave offence which attracts social isolation, chance of loss of liberty and ill-repute to the petitioner as a consequence to be named as accused in a FIR of such offences.
14. Petitioner refutes the entire allegation of the complaint and FIR as he has no facebook account bearing remarks that “I love Pakistan” is his favorite message and pictures showing disrespect to national flag. Despite it, even if the allegations are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the petitioner. One of the offences alleged in the FIR is section 66A of Information Technology Act, 2000. The basic ingredient of section 66 A of the Act is sending of an information that is grossly offensive or has menacing character or that is false, but for the purpose of causing annoyance, hatred etc. or sending of any electronic mail or message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages. There is no allegation in the FIR or its relying complaint that petitioner has sent impugned remarks or pictures to anyone by means of computer resource or communication device. The only accusation is that petitioner remarked in his facebook account that his favourite message is “I Love Pakistan” and two photographs showing disrespect to National flag were created in his facebook. There is no act of sending of alleged offensive remark or pictures by the petitioner to anyone. As per Ext.P3 FIR, somebody has seen the impugned remarks and pictures in petitioner’s facebook and there is no case that the said anonymous viewer was invited by the petitioner or he accessed the facebook account of the petitioner with his permission otherwise such unauthorised access is punishable under section 66 read with 43 (a) & (b) of the Information Technology Act, 2000. If the allegations in the FIR taken on its face value, as the petitioner has not send the offensive remark and picture to anyone, it will not attract the ingredients of section 66A of Information Technology Act, hence it is liable to be quashed.
15. Another offence alleged against the petitioner in Ext.P3 is section 124A of Indian Penal Code. Honourable Supreme Court defined the meaning, scope and object of sedition under section 124A in Nazir Khan And Others v. State of Delhi, 2003 (8) SCC 461. “Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and laws of the country. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. “Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder. The decisive ingredient for establishing the offence of Sedition under S.124A, IPC is the doing of certain acts which would bring the Government established by law in India into hatred or contempt etc. In this case, there is not even a suggestion that appellant did anything as against the Government of India or any other Government of the State. The allegations made against the appellant contain no averment that appellant did anything as against the Government, hence it is liable to be quashed.
16. Another offence leveled against the petitioner in Ext.P3 is section 2 of Prevention of Insult to National Honour (PINH) Act, 1971. Section 2 states that “Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. The allegations in the FIR are so vague and cryptic to attract the ingredients of the said offence. Petitioner’s account in the domain of facebook is not a public space. The complaint of the 5th respondent upon which Ext.P3 FIR has been lodged states only that the other pictures crerated in the facebook are also showing disrespect to the National Flag of India. Petitioner’s account in the domain of facebook is not a public space. It states nothing about the picture and how it shows disrespect to national flag. By the allegations made in the FIR are patently absurd and by that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the petitioner under section 2 of PINH Act.
17. It is learnt that lodging of Ext.P1 FIR arose from the complaint made by Standing Council of Trade Unions, Ernakulam before DySP, CB CID, Ernakulam, to wreck their vengeance with environmental activist like Mr.Purushan Eloor and other members of Periyar Malineekarana Virudha Samithi. The Trade Union leaders produced the printout of facebook pages containing impugned remarks that I Love Pakistan is a favourite message and pictures showing disrespect to national flag to buttress their allegation against Purushan Eloor and others alleging link with anti national forces. On 23.07.2012 Mr.Purushan Eloor was quizzed by the DySP, CB CID, Ernakulam on the said complaint and sought his explanation on the produced facebook pages alleging disrespect to national flag. As he has not found such pictures and remarks showing disrespect to national flag and honour in his facebook account or of the petitioner, he made an application under RTI act for copies of the facebook pages produced by them for making complaint before Cyber Crime Enquiry Cell, but which was denied stating that RTI Act does not apply to Crime Branch CID. Then Purushan Eloor made a complaint before the DySP, CB CID, Ernakulam on 01.08.2012 seeking investigation against the Trade Union leaders for fabrication of false evidence after verifying the authenticity of impugned facebook pages produced by them. Two ministers of state government, namely Minister for Public Works and minister for Fisheries, Ports and Excise decorate the patrons’ post of Standing Council of Trade Unions, Ernakulam in violation to the mandate of section 22(3) of the Trade Union Act. Thus the trade union standing council has good access and influence in the state government. Ext.P1 was hastily lodged by the police malafidely to shun away the investigation sought against the Trade Union Standing Council, despite no FIR has been lodged on the complaint made by Purushan much earlier on 01.08.2012. Ext.P1 is liable to be quashed as the proceedings seem to have been initiated with mala fides/malice for wrecking vengeance or to cause harm to environmental activist like Purushan Eloor and others and for which petitioner has been made a scapegoat.
18. Petitioner’s mother is aged and sick having cardiac ailment. After the spreading out of news about the lodging of Ext.P1 against the petitioner, neighbors and relatives used to avoid social contact with petitioner’s family. This social ostracism and absence of petitioner who toils abroad for winning daily bread at deserts in Gulf and his unavailability of petitioner in her immediate presence, broke her. She wants to see the petitioner. Petitioner’s wife and children are also panic and longing for seeing him. Petitioner would get only short leave and he want to see his old mother, wife and children to pacify them, but he apprehends that his liberty would be periled being arrested by police who are arbitrarily proceeding with the false complaint initiated on the vengeance of a group of trade union leaders and on that instance he would lose his employment and means to repay the loan of Rs.17 lacs and subsistence for family and they may be finally dragged to street.
19. Petitioner is ready to face any investigation, but it should be free and fair. Petitioner crave before this honourable court until it has been found by the Cyber Crime Enquiry Cell that petitioner’s facebook account contains objectionable remarks and pictures showing disrespect to national flag or national or honour or of any seditious character, his personal liberty should not be curtailed. If it is found by the cyber crime inquiry cell that petitioner has made offensive and seditious remarks or pictures, petitioner bind himself before the investigative officer or the court to uphold the majesty of law. Petitioner apprehends that by the influence of Standing Council of Trade Union who has easy access and influence in government, he might have been made a scapegoat by the police for the feud of Trade Union Leaders against petitioner. If it is found in the inquiry that petitioner has not made such seditious remark and pictures in his facebook account, it will boomerang to the Trade Union Leaders indicting them of fabricating false evidence. In this circumstance there will be great pressure on investigating agency and cyber crime enquiry cell to get tailor made report by the Trade Union Leaders, the hasty lodging Ext.P1 reflects nothing different of petitioner’s apprehension. Hence the investigation and cyber crime enquiry should be under the guidance of this honorable court .
By the arbitrary and capricious action of the police, the reputation, life and personal liberty of the petitioner is under serious threat, petitioner having left with no other alternate efficacious remedy is compelled to approach this Honourable Court under Article 226 of the Constitution of India, on following among other
GROUNDS:
A) The 3rd respondent malafidely without application of mind lodged Ext.P1 FIR on the direction of 5th respondent without satisfying whether allegations made in the complaint even if taken on its face value, makes out any offence alleged.
B) Ext.P1 was lodged on a vague and cryptic complaint which has the character of only hearsay. It is liable to be quashed.
C) The allegations in the complaint are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioner.
D) In enquiry of cyber crimes, a pre-investigation enquiry of the authenticity and author of computer by which cyber crime has been committed is indispensable to proceed with the investigation. But police were malafidely haste to register Ext.P1 without verifying the authenticity and author of the impugned facebook pages. The action of the police was arbitrary and discriminatory and Ext.P1 liable to be quashed.
E) Even if the allegations in the FIR is taken its face value, it does not make out the offences under sections 66A, IT Act, 124A IPC, 2 PINH Act. Hence it is liable to be quashed.
F) Ext.P1 originally arose from the complaint of Trade Union Standing Council against one Mr. Pursuhan Eloor and the environmental organization he is associated with alleging link with anti national forces. For buttressing the said allegation they have produced the facebook pages which also contained the seditious remark and pictures alleged to be taken from petitioner’s face book account alleging that Purushan Eloor is petitioner’s close friend. It was with intention to wreck vengeance with environmental activist like Purushan Eloor. Purushan Eloor made a complaint against Trade union leaders seeking inquiry about the authenticity and authorship of the facebook pages which contain seditious pictures by referring to Cyber Cell and prosecute them alleging that it has been fabricated by the Trade Union leadership. Patron posts of the Standing Council of Trade Union is decorated by two ministers of state government in violation to the mandate of section 22 (3) of Trade Union Act. Trade Union standing council has easy access and influence in the state government. If it is found in the cyber crime inquiry that petitioner has not made such seditious remark and pictures in his facebook account, it will boomerang to the Trade Union Leaders indicting them of fabricating false evidence. In this circumstance there will be great pressure on investigating agency and cyber crime enquiry cell to get tailor made report by the Trade Union Leaders, the hasty lodging Ext.P1 reflects nothing different of petitioner’s apprehension. Hence the investigation and cyber crime enquiry should be under the guidance of this honorable court.
G) The mandate of Art.21 which requires a police officer to protect a citizen from baseless allegations. The respondent police officer arbitrarily and hastily proceeded with the allegation without verifying whether it is reliable or baseless. The life and liberty guaranteed under Art.21 is under peril by discriminatory treatment of Police by violating Art.14 of the Constitution of India.
For these and other grounds that may be urged at the time of hearing, it is most humbly prayed that this Hon’ble Court may be pleased to:
i) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P1 First Information Report lodged by the 3rd respondent upon the direction of the 5th respondent ;
ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent investigation officer not to arrest the petitioner until the receipt of report from Cyber Crime Enquiry Cell that confirms the allegations in the complaint;
iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4th respondent investigation officer and 6th respondent to conduct investigation and cyber crime inquiry under the guidance of this Honourable High Court;
iv) Call for the information from the 5th respondent to make complaint against the petitioner and the supporting documents to make serious seditious allegation against the petitioner
Dated this the day of January, 2013.

Petitioner
Counsel for the Petitioners

INTERIM RELIEF

For the reasons stated in the accompanying affidavit and in the Memorandum of Writ Petition, it is most humbly prayed that this Hon’ble Court may be pleased to stay the further proceedings of Ext.P1 First Information Report, pending disposal of this writ petition.

Dated this the day of January, 2013.

COUNSEL FOR THE PETITIONERS

 

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