Arrest of Avnish..Industry Responds

(Should  Law Take Its Own Course?)

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Previous Articles:

Outrage Expressed at bazee.com CEO arrest :

What is Due Diligence?..1..Effect of Section 79 of ITA-2000

What is Due Diligence?..2..(Effect of Section 85 of ITA-2000)


The arrest of the Bazee.com CEO, Mr Avnish Bajaj has evoked strong opposition from the industry. Perhaps the opposition is much more than what was expressed for the earlier arrests of the Polaris Chief and I-Flex Chief in foreign countries. FICCI and NASSCOM have also expressed strong resentment unmindful of the possibility of this being interpreted as application of external  pressure to the due process of law.

As could be expected, media including NDTV has been very sympathetic to highlight the opposition of the industry captains.

It is reasonable to expect that the concerns of the US would have by this time been conveyed to the Prime Minister, the Home Ministry, the Ministry of ICT, as well as the Law Ministry. The Judiciary cannot but take notice of these developments.

It is clear that the involvement of the US has given a different perspective to the handling of the trial. The way the Court may react today to the Bail application will determine to what extent the pressure from US has had its effect.

It is natural that Nasscom, FICCI, as well as the US Secretary of State argue that the action of Delhi Police in arresting the Bazee CEO was unwarranted.

But let us not forget, that Police had very little choice but to go ahead with the arrest since this is an established practice in the country.

There was little doubt that a punishable offence had been committed by Bazee.com and the only defense available to Bazee.com is to prove that it had acted with due diligence which can be done at the trial stage (and I am sure will be done at the appropriate time).

Under these circumstances, the industry's opposition raises the following critical issues.

Should the Police sit in judgment of "Due Diligence" at the stage of preliminary investigations? or leave it for detailed investigation later on ?.

Is it the duty of the Police or that of the Court to consider this defense?

Are there any conditions under which Police can be made to take cognizance of the "Exercise of Due Diligence" even at the preliminary investigation stage?

I am briefly stating below one point of view and invite the experts to add their comments.

Should the Police sit in judgment of "Due Diligence" at the stage of preliminary investigations? or leave it for detailed investigation later on ?..

Preliminary investigation is a stage where the Police try to determine whether an offence has been committed and there is a reasonable ground to believe that the accused had a role in the offence. This is not the time when they can evaluate if the accused is entitled to any statutory defense.

If "Exercise of Due Diligence" is to be considered by the Police at the time of the detailed investigation and not at the preliminary stage, then going for arrest and asking for remand for further investigations is a natural process.

If the Police do not press for arrest at this stage as they did in the case of the Juvenile boy, they will be open to criticism of showing undue favoritism.

Even in the present case, while sympathy is available for the 17 year old boy who appeared to have planned the execution of the crime meticulously, and for the Bazee.com CEO who is expected to know the risks involved in E-Commerce and did not take enough steps to prevent the occurrence of the crime despite having necessary resources, there is no sympathy for the IIT Boy who has admitted his mistake and expressed regret.

While a few day's in prison for Mr Bajaj may not affect his career, the same few day's of prison for the IIT boy might have already spoiled his entire future.

Should then Police look at the reasonableness of punishing this boy also during the preliminary investigations?

In expressing our opposition to the arrest of Mr Bajaj,  we need to therefore understand the compulsions of the Police and address the overall issue of "Need to Arrest".

The way a Shankaracharya of a Hindu Mutt is being made to spend time in jail during the preliminary investigations is fresh in the minds of Indians.  Should we dilute the principle of "Let the Law Take Its Own Course" to which our present Government is committed at all levels... and make an exception to bazee.com, ...Our intellectuals should ponder..

Is it the duty of the Police or that of the Court to consider this defense?

It is difficult to expect that the Police should look at the defense argument beyond the very basic aspect of whether a crime has been committed or not.

It may be more reasonable to expect that  when the arrested person is presented before the magistrate within 24 hours, the Magistrate may determine if there is a reasonable and apparent defense and take a view on remanding the accused to Police or Judicial Custody or letting him free even while the investigation continues.

Even in this case, the Magistrate's hands can be tied if the Police request for the remand and state that it is essential for the investigation. It may be considered extraordinary for the Magistrate to take any  view of the evidence at that stage and come to an immediate conclusion that the arrest is not necessary. It is therefore a normal practice for the Judiciary at this stage to give a long rope to the prosecution and take their statements at face value and grant custody.

For all those who have followed the Kanchi Seer case, it will be clear that at this stage it is not abnormal for the prosecutor to pronounce that he considers the accused as the "Criminal" and he should not be granted bail. We may remember that in the Kanchi case, even though the so called "Clinching Evidence" on which the first arrest of the  Seer was made turned out to be unavailable later, even though several other evidences produced by the Police in different hearings could not be sustained in subsequent stages,  whenever the Prosecutor contended that there is some new evidence and the arrest had to continue, the Court respected the wisdom of the prosecutor and granted their wish so that it would not be giving an impression that the accused was given a favourable treatment.

It can therefore be contended that at the preliminary stage, courts tend to go along with the Police and accept their contention as presented, but would take up the evidence for examination at a later stage.

It is open to them to pass strictures on the Prosecution team if it finds that the court has been deliberately misled.

It may have to be therefore contended even if it is unpalatable, that, the few days of remand for Mr Bajaj was inevitable, given the standards set in our criminal procedures.

It is only when we change these standards and clarify when the Police should resort to arrest and when the arrest could be executed in the form of lodging in a "Guest House" or in the form of a "House Arrest" (as against sending the accused to be in the company of pick pockets and petty criminals, in the Tihar jail or in the company of Snakes in the Vellore jail), we can argue if Mr Bajaj's arrest was wrong.

Perhaps this case gives us an opportunity to set norms for arrest in all cases.

Some readers may point out that it is wrong to compare the Kanchi Seer case with the current case because the former was a case of assault and murder while the later is not. However, it must be weighed with the fact that the Kanchi Seer's arrest was based on the statements of persons known to "Kill for Money" and not based on proven evidence.  On the other hand, in the case of Bazee.com, the crime has been established and we are only arguing if the CEO of a firm had to be arrested for the crime or not and if he has exercised due diligence or not. There are similar past incidences where vicarious responsibility has been implied as in the cases of CEOs as in the Bhopal Gas Tragedy or Kumbakonam School Fire Tragedy or the Delhi Alankar Theater Fire tragedy.

Are there any conditions under which Police can be made to take cognizance of the "Exercise of Due Diligence" even at the preliminary investigation stage?

I was disappointed with the call from the FICCI chief that there is a need for changes in IT Laws. May be Nasscom also holds this view. The FICCI President has gone on record that sending of a "Notice" before arrest should have been mandated in the law.

I would like to state that the current IT laws provide for defense through "Due Diligence" and there is no reason why "Sending of  Notice" cannot become part of the process if it is properly projected.

"Due Diligence" is an "Industry Standard" and it is far more industry friendly than making a change in the Act itself. This industry standard can keep changing.

As of now, Naavi.org has been advocating a voluntary CyLawCom process (see www.cylawcom.org) for various players in the Net world and this is also being proposed as a service to be offered by the Cyber Society of India.(CySi) ( www.cybersocietyofindia.org ).

Neither FICCI nor NASSCOM have recognized the potential of such voluntary Cyber Law Compliance programmes. Had they acted in time, they could have used the CySi standards as the industry norm and a certificate from CySi that Bazee.com was exercising "Due Diligence" could have been a sufficient preliminary defense to prevent the arrest or for getting an early bail. It would have then been the responsibility of the prosecution that despite the existence of such a certificate the accused has not exercised "Due Diligence" according to its interpretation and let the Court take a final view.

Even now it is urged that Nasscom/FICCI/CII consult CySi and adopt the model Cyber Law Compliance programme developed by them for various E-Commerce entities and set in motion a proper system of Cyber Law Compliance Audit and Certification.

If this is the outcome of the current imbroglio, perhaps the sacrifices made by Mr Bajaj as a victim of circumstances could have a positive contribution to the society.

.....Continued

Naavi

December 21,2004

Also See

Bloggers Beware..Set of 10 articles

Advertising Code?..or Section 67 of ITA 2000?

Related Articles:

FICCI

Nasscom

CIOL



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