RAJESH RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) These two Writ Petitions are being disposed of by this common Judgment as the instant matters pivot around the alleged non-compliance of the provisions of Sec. 41A of the Code of Criminal Procedure, 1973 (for short -Cr.P.C.?) by the Investigating Officer (I.O.) of the Sikkim Police in terms of the directions of the Hon'ble Supreme Court in Arnesh Kumar vs. State of Bihar and Another (2014) 8 SCC 273.

(2.) In WP(C) No.34 of 2020, the matter has its genesis in an FIR lodged by one Tseten Tashi Bhutia, dtd. 6/8/2020, informing the Station House Officer at the Sadar Police Station, that a fake Facebook account had been created in the name of one Simran Gurung and posts uploaded on 2/8/2020 and on 4/8/2020 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. It is the contention of Learned Counsel for the Petitioners that pursuant to the FIR dtd. 6/8/2020 lodged by Tseten Tashi Bhutia, which was registered by the Sadar PS under Ss. 153A/505(1)(2)/ 506/120B of the Indian Penal Code, 1860 (for short, "IPC?), being FIR No.123/2020, on 2/11/2020, at about 10 a.m., four Policemen from the Sikkim Police of whom one was the Respondent No.5 (I.O.) and Respondent No.6 (PI, Criminal Investigation Department) barged into the Petitioners' home, manhandled his family members including his aging father and forcefully took the Petitioner No.1 into their custody. 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, vide Property Seizure Memo (Annexure P3). The family of the Petitioners were not informed about his whereabouts and he was brought to the Sadar PS at 05.30 p.m. while the Arrest Memo came to be handed over to his family members only on the next date. The Respondent No.5 then sought Police custody of the Petitioner No.1 and the Learned Judicial Magistrate, at Gangtok, remanded him to police custody on 3/11/2020 up to 6/11/2020 which was extended on 6/11/2020 up to 11/11/2020.

(3.) In WP(C) No.35 of 2020, it is revealed that an FIR was lodged by one Kalpana Chettri, dtd. 12/8/2020, informing the CID In-Charge, Police Headquarters, that posts against her had been uploaded from fake Facebook accounts, making baseless allegations about her character, with the purpose of defaming her and her husband which had mentally disturbed her and her family as the material was not only defamatory but also attempted to outrage her modesty and bring her disrepute. It is the contention of Learned Counsel for the Petitioners that pursuant to the FIR dtd. 12/8/2020 lodged by Kalpana Chettri, which was registered by the CID under Ss. 354/509 of the IPC and Sec. 67A of the Information Technology Act, 2000, being FIR No.12/20, on 2/11/2020 between 2 to 3 pm., the Petitioner No.1 received multiple calls on his cell phone from the Respondent No.3 (Superintendent of Police) asking him to visit the CID Office. On reaching there, the Petitioner No.1 was immediately taken into custody and his family were not informed about his whereabouts. He was brought to the Sadar PS at 05.30 p.m. while the Arrest Memo was handed over to his family members only on the next date. The Respondent No.4, the I.O., then sought Police custody of the Petitioner No.1 and the Learned Judicial Magistrate, at Gangtok, remanded him to police custody on 3/11/2020 up to 6/11/2020 which was extended on 6/11/2020 up to 11/11/2020.