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Direction for FIR in ATM Fraud Case underneath Cyber Crime,IT Act.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (DIRECTION – TO LODGE FIR/COMPLAINT) NO. 1410 of 2016

IDRISHBHAI SAIFUDDINBHAI HATHI….Applicant(s)

Versus

STATE OF GUJARAT 2….Respondent(s)

Appearance:

MR MA SAIYAD, ADVOCATE for a Applicant(s) No. 1
MS BENAZIR M HAKIM, ADVOCATE for a Applicant(s) No. 1
PUBLIC PROSECUTOR for a Respondent(s) No. 1

CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

ORAL ORDER

  1. Petitioner approached this Court underneath Article 226 of a Constitution of India as good as underneath Section 482 of a Code of Criminal Procedure seeking lodgment of a censure forthwith on a strength of his illustration done to a P.I,Dholka military hire on 23.2.2016.
  2. Brief contribution are as follows:-

2.1 The postulant is an agriculturist. He possesses assets bank comment No.210910100002143 in Bank of India during Pisawada Branch.

2.2 It is a contend of a postulant that on 16.2.2015 when he went to ATM,SBI, Bazar Branch to repel Rs.1000/-, a appurtenance was not operative properly. He managed to get a volume of Rs.1000/- after inserting a label twice or thrice with a assistance of some persons. It is his contend that to his startle he satisfied that sum of Rs.50,000/- had been deposited from his comment on 16.2.2016. Therefore, he rushed to his bank to find out a law of a matter usually to find another startle that a card, that he was carrying was not that of his though that of a third person. His label had been taken divided by those who camouflaged to assistance him. He,therefore, had lodged a censure of intrigue by giving a illustration to P.I.Dholka military hire and as no FIR is lodged, a postulant is before this Court seeking following reliefs:-

“9. In a aforementioned premises a postulant many humbly prays before this Honourable Court that this Honourable Court might be gratified to emanate a command of mandamus or any other suitable writ, sequence or instruction in a inlet of mandamus, a command of certiorari or any other suitable writ, sequence or instruction in a inlet of certiorari or any other suitable writ, sequence or instruction and there by:

(A) THIS HONOURABLE COURT MAY BE PLEASED TO sequence and approach a respondent No.2 and 3 to cruise a representations done by a postulant and board a censure (Annexure “A”) forthwith in a seductiveness of justice.

(B) This Hon’ble Court May Be Pleased To Direct respondent Nos.2 and 3 to take despotic movement opposite a offenders in a seductiveness of justice.

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(C) This Hon’ble Court might be gratified to endowment a costs throughout.

(D) This Hon’ble Court might be gratified to extend such other and serve relief’s as deemed fit and correct in a seductiveness of justice.”

  1. Learned disciple Mr.M.A.Saiyed appearing for a postulant has urged that this not usually concerns a corruption of rascal and intrigue though also relates to cyber-crime. He has also placed in service, a communication shot by a Police Commissioner, Ahmedabad on 5.5.2012 to stress that any time there is doubt of cyber-crime, usually no censure is being registered.
  2. Learned Additional Public Prosecutor does not brawl that whenever a prima facie cognizable corruption is done out, a endangered officer requires to board a complaint.
  3. Having so listened schooled advocates for both a  sides, firstly this Court needs to profitably imitate a commentary and directions released by a Apex Court in a box of Lalita Kumari vs. Government of Uttar Pradesh and another reported in AIR 2014 SC 187.

“Conclusion/Directions:

111.In perspective of a aforesaid discussion, we hold:

(i) Registration of FIR is imperative underneath Section 154 of a Code, if a information discloses elect of a cognizable corruption and no rough exploration is slight in such a situation.

(ii) If a information perceived does not divulge a cognizable corruption though indicates a prerequisite for an inquiry, a rough exploration might be conducted usually to discern either cognizable corruption is disclosed or not.

(iii) If a exploration discloses a elect of a cognizable offence, a FIR contingency be registered. In cases where rough exploration ends in shutting a complaint, a duplicate of a entrance of such closure contingency be granted to a initial adviser forthwith and not after than one week. It contingency divulge reasons in brief for shutting a censure and not move further.

(iv) The military officer can't equivocate his avocation of induction corruption if cognizable corruption is disclosed. Action contingency be taken opposite imperfect officers who do not register a FIR if information perceived by him discloses a cognizable offence.

(v) The range of rough exploration is not to determine a sincerity or differently of a information perceived though usually to discern either a information reveals any cognizable offence.

(vi) As to what form and in that cases rough exploration is to be conducted will count on a contribution and resources of any case. The difficulty of cases in that  preliminary exploration might be done are as under:

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(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical loosening cases

(d) Corruption cases

(e) Cases where there is aberrant delay/laches in initiating rapist prosecution, for example, over 3 months check in stating a matter but satisfactorily explaining a reasons for delay.

The aforesaid are usually illustrations and not downright of all conditions that might aver rough inquiry.

(vii) While ensuring and safeguarding a rights of a indicted and a complainant, a rough exploration should be done time firm and in any box it should not surpass 7 days. The fact of such check and a causes of it contingency be reflected in a General Diary entry.

(viii) Since a General Diary/Station Diary/Daily Diary is a record of all information perceived in a military station, we approach that all information relating to cognizable offences, either ensuing in registration of FIR or heading to an inquiry, contingency be mandatorily and meticulously reflected in a pronounced Diary and a preference to control a rough exploration contingency also be reflected, as mentioned above.”

  1. As can be remarkable from a illustration done by a benefaction postulant addressed to P.I., Dholka military hire reveals that after a occurrence of 16.2.2016 a censure so distant has not been lodged. It will be required to approach a endangered P.I. to demeanour into a aspect and register a censure but serve detriment of time when cognizable corruption is done out. It is to be remarkable that a rough exploration is  permissible usually to a border of anticipating out as to either a cognizable corruption gets revealed. While so doing it, he shall have to also bear in mind a communication of Police Commissioner, Ahmedabad City antiquated 5.5.2012, that is as follows:-

” The Office of a Police Commissioner, Shahibaug, Ahmedabad City.

Telephone No.25628783, 25627873, Email :- rdr-

ahd@gujarat.gov.in No.G/725/CP/2536/2012 Date :- 050.05.2012 Sub :- To take movement immediately in tie with a application/representation given by a Applicant/Victim per a Cyber Crime.

Ref. :- Letter No. Cyber Cell/Alolika/Appl./78/12, dtd.01.05.2012 of The Additional Director General of Police, C.I.D., Crime and Railways, Gandhinagar, Gujarat State.

In tie with a aforesaid subject, it is settled that, a series of a incidents per to Cyber Crime has increasing in today’s world. At present, any chairman uses internet, mobile and other gadgets relating to electronic media extensively and is carrying knowledge. Under such circumstances, it has come to a notice of a Additional Director General of a Police, C.I.D., Crime, Gandhinagar, Gujarat State that, when a plant approaches a Police Station to board complaint, a Police surprise a plant that, a corruption relates to Cyber Crime, we can't do anything in it, we should hit to Cyber Cell, Gandhinagar / City Crime Cyber Cell and in many cases, a plant is not even heard.

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Recently, a P.S.I./P.I., have also been  given a training per a review of ‘E’ Mail Tracing and Cyber Crime. Its purpose is to take rapid movement in a offences/applications per to Cyber Crime being taken place in City/District. In fact, as per a amendment done in a ‘I.T.Act’, now a Officer of a Police Inspector Cadre can examine a corruption underneath a I.T.Act.

Therefore, when a plant comes to a military hire in tie with a incidents per to cyber crime, his application/representation might be taken into care by a Senior/Second Police Inspector immediately and he should control correct review of a focus or get it conducted, if he finds it proper, he should register a corruption and control a review thereof and in difficult cases, if necessary, he should send a minute news by a Deputy Police Commissioner so that, this bureau might give correct instruction with courtesy to palm over a review of a critical cases to a City Cyber Cell. All a Police Station Officers are educated to take special note thereof.

Sd/- (S.K.Saikiya), The Police Commissioner, Ahmedabad City.

To, The Police Inspectors, All a Police Stations, Ahmedabad City.

Copy forwarded for information and for corroboration during visit.

The Joint Police Commissioner, Crime Branch, Section – 1 and 2, Head Quarter, Special Branch, Ahmedabad City, -illegible-.”

  1. As a military officers and other personnels are already lerned to examine into a corruption that  concerned a cyber-crime as also in arise of directions rendered in a box of Lalita Kumari vs. Government of Uttar Pradesh and another(supra), a charge of registration of a censure (FIR) shall be undertaken during a beginning by following aforementioned directions.
  2. At this stage, it is imperative for a really military hire to register a crime even if it is cyber-crime rising from a complaint. It is usually in box of many difficult cases that a accede can be sought of a Police Commissioner for referring a matter to a cyber-crime cell.
  3. Petition is authorised to a border above. Disposed of accordingly.

Direct use is permitted.

(MS SONIA GOKANI, J.)

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