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
