Allegation Of Sharing Call Details Without Consent: Karnataka HC Says 'Service Providers Are Dutybound To Provide Information Whenever Required By Police'[Read Judgment]
The Karnataka High Court has quashed criminal case registered against, Sunil Bharti Mittal, Chairman, Bharti Airtel Limited, Gopal Vital, Managing Director, Rohit Malhothra, Chief Executive Officer and Stanley Agnelo, nodal officer of the company, under charges sections, 406, 504, 506(B) of Indian Penal Code, and under section 72, 72A AND 66A of Information Technology Act. ...
The Karnataka High Court has quashed criminal case registered against, Sunil Bharti Mittal, Chairman, Bharti Airtel Limited, Gopal Vital, Managing Director, Rohit Malhothra, Chief Executive Officer and Stanley Agnelo, nodal officer of the company, under charges sections, 406, 504, 506(B) of Indian Penal Code, and under section 72, 72A AND 66A of Information Technology Act.
An estranged husband involved in divorce proceedings with his wife had moved a private complaint before the magistrate, seeking registration of offence against them, alleging the petitione's being service provider, had given his call details, without his consent to his wife and therefore the accused persons are liable for punishment.
Case background:
The complainant N Naresh Kumar had claimed that he is a customer of 'Airtel' Service Provider. There is a family dispute between him and his wife. He had filed divorce petition against his wife and the same was pending consideration before the Family Court at Bengaluru. Afer the dispute arose the complainant changed his earlier mobile phone number and was using a different number. It is alleged that the wife colluded with the petitioners herein to collect his call details between 1/10/2012 to 09/10/2012. He received certain calls from anonymous persons enquiring about his identity and whereabouts.
On the receipt of the complainant the Magistrate referred the complaint to the Soladevanahalli Police for investigation and report. Pursuant to the same, case was registered for offences punishable under sections 406, 503, 506, 507 and 34 of IPC and under sections 66-A, 72 and 72-A of Information Technology Act, 2000, against the petitioners herein and wife of the complainant.
The investigating officer submitted a 'B' final report to the Magistrate. The Magistrate on the basis of the protest petition filed by Respondent No.1, took cognizance of the offences in the complainant and thereafter posted the matter for recording of sworn statement of the complainant. After recording of the sworn statement of the complainant, the Magistrate directed the Assistant Commissioner of Police (NorthDivision) Bangalore to further investigate into the matter and submit a report. The Assistant Commissioner of Police submitted a report stating that there is no truth whatsoever in the allegations made by the complainant and the complaint is motivated, seeking to wreck vengeance against the wife of the complainant. Despite two reports, the Magistrate passed an order dated October 31, 2014, directing registration of the case against the petitioners and issuing of process.
Senior Counsel, C.V. Nagesh, appearing for the petitioners argued "This is a clear case of abuse of process of this court. In a criminal proceedings, the question of vicarious liability would not arise. Moreover, it is submitted that if a Police Officer, during the course of investigation of the case requires the call details of a person, then the concerned officer of the Service Provider is required to give such information. On the contrary, if such information is not made available to the Police Officer, then in all probability, the service provider can be hauled up for not providing the information and creating hurdles in the duty of a Police Officer."
It was also pointed out that on 10-10-2012, the concerned Police Officer, secured call details of her husband since she had made a complaint to the police that her husband had been missing. It is in this regard that the jurisdictional police had to secure the call details of the complainant since there was a complaint made by complainant's wife that the complainant has been missing from his residence.
Justice R Devdas, while quashing and setting aside order taking cognizance by Addl. Chief Judicial Magistrate, Bangalore Rural District, Bangalore and all further proceedings, said "On plain reading of the complaint, it is evident that the offences sought to be made out against the petitioners who are service providers, are not attracted. Service providers are duty bound to give information whenever required by a Police Officer who is investigating into the matter and if such request is made by Police Officer and if the local Branch Officer does not disclose the information, then he may be liable for criminal action and may be liable for penal consequences. The learned Magistrate was duty bound to look into these aspects and moreover, petitioners No.1 and 2, who are the Chairman and Managing Director of the Service Provider company,sitting at New Delhi, are in no way involved in the day- to-day activities of local branches across the country."
The court also cited the case of Sunil Bharati Mittal Vs. Central Bureau of Investigation reported in (2015) 4 SCC 609, the Apex Court, has held that when a Company is accused, its Directors, can be roped in only if there is sufficient incriminating evidence against them coupled with criminal intent or a statutory regime attracts the doctrine of vicarious liability. Therefore, unless and until there is incriminating evidence against the Directors of a Company, coupled with criminal intent, criminal proceedings cannot be initiated against the Directors of a Company.
It added "It is clear from the complaint that no such allegation either of criminal intent or any incriminating evidence to allege personal motive against the petitioners herein are found."
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