IN
THE HIGH COURT OF DELHI AT NEW DELHI
WRIT PETITION CRIMINAL NO. 437 OF
2018
IN THE MATTER OF
Seema Sapra … Petitioner
Versus
Union of India & Others … Respondents
PRELIMINARY WRITTEN SUBMISSIONS/ ARGUMENTS ON
BEHALF
OF THE PETITIONER DATED 6 MARCH 2023
1. The Supreme Court has held in several
judgments that the victim of a cognizable offence has the right to registration
of an FIR and has the right to a fair, impartial and complete investigation.
2. The Victim-Petitioner in the present case
makes the following submissions:
3. The Writ Petition discloses information
regarding the commission of several cognizable offences committed against the
Petitioner and was filed seeking registration of an FIR among other relief. The
Petition was transferred to the Delhi High Court by the Supreme Court in 2018.
The Delhi Police is ostensibly represented by Counsel in the matter since 2018.
Yet no FIR has been registered till date by the Delhi Police in respect of the
subject complaints of the present petition despite the mandate of a
Constitution Bench of the Supreme Court of India in W.P, (Cri.) No.68 of 2008
(Lalita Kumari Vs Government of U.P and others) decided on 12-11-2013.
4. How can there be a Police investigation
without an FIR. Who is the Investigating Officer in this case? Why has no
Police Officer spoken to the Petitioner till date regarding her complaints in
the present Petition? Why has the Petitioner’s statement not been recorded till
date? If the Police has not registered an FIR and is not investigating, then
what has the Police been doing since 2018 on the Petitioner’s complaints.
5. In Lalita Kumari’s case, the Supreme Court
also called for action against erring officers who do not register an FIR if
information received by him/her discloses the commission of a cognizable
offence. It may be mentioned that Section 166 A of Cr. P.C. prescribes a
penalty of imprisonment up to two years and also a fine for non-registration of
a FIR for an offence described u/s 166 A.
6. The Petitioner-Victim relies upon the Supreme
Court in Jagjeet Singh & Ors VERSUS Ashish Mishra @ Monu & Anr wherein
it was ruled:
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A ‘victim’ within the meaning of Cr.P.C.
cannot be asked to await the commencement of trial for asserting
his/her right to participate in the proceedings. He/She has a legally
vested right to be heard at every step post the occurrence of an offence.
Such a ‘victim’ has unbridled participatory rights from the stage of investigation
till the culmination of the proceedings in an appeal or revision.
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7. The Petitioner- Victim relies upon the Supreme
Court in Anant Thanur Karmuse Versus The State of Maharashtra & Ors wherein
it was held:
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As observed and held by this Court in the
aforesaid decisions, the victim has a fundamental right of fair investigation
and fair trial. |
8. Instead of registering an FIR, recording the
victim’s statement and investigating the complaints which make out cognizable
offences, the Delhi Police in this case has participated in a criminal
conspiracy with others (including some lawyers) to scuttle any FIR or
investigation on the Petitioner’s complaint.
9. This criminal conspiracy and the
participation of the Delhi Police in it, is evident from two facts that emerge
from the documentary record in the present case.
10. The very first status report dated 25 October 2018 which was filed in this case on behalf
of the Delhi Police was filed by Officers of the Saket Police Station in Delhi
who had no connection to this case and who falsely impersonated as the
Investigating Officers.
11. This Status Report of the Delhi Police dated 25
October 2018 makes a false statement that the impugned Blog was deleted by
Google. The documents attached to this Status Report itself contradict this
statement in the status report. The false status report dated 25 October 2018 filed
by Saket Police Station Officers impersonating as Investigating Officers contains
fabricated emails and documents to falsely show that the Delhi Police contacted
Google to delete the impugned Blog. There is no evidence or statement on record
that shows that Google deleted the Blog. The Fact is that the Blog was deleted
sometime after 27 April 2018. If Google
did not delete the Blog, then someone logged into
Blogger using the username email and password and deleted the Blog in 2018.
The false status report dated 25 October 2018 filed by Saket Police Station
Police Officers falsely impersonating as IO in this matter, falsified documents
and made a false statement that the Blog was deleted by Google with the
malafide intent to hide the crucial fact that someone logged into Blogger using
the username email and password and deleted the Blog in 2018. This lie has been
concocted using the Delhi Police in order to scuttle any investigation and to
protect the procurers, creators and their co-conspirators who created and
published the impugned Blog and who accessed the Blog as Admins as late as 2018
and deleted the Blog.
12. Certain lawyers have appeared for Google LLC
in this matter. They have chosen to remain silent on who deleted the Blog, and
have not attempted to correct the misrepresentation by the Delhi Police that
the Blog was deleted by Google. Prima facie it appears as if the lawyers who
have appeared for Google LLC in this matter are part of the criminal conspiracy
to scuttle any investigation.
13. The order passed by Justice Mukta Gupta on 1
November.2018 states the following: “With the
intervention of respondent No.5, the impugned blog12 has been removed in
May, 2018 as stated by the petitioner herself.”
14. It is submitted that this statement in
Justice Mukta Gupta’s Order dated 1 November 2018 does not state that the Blog
was removed by Google LLC. Neither did the Counsel who appeared for Google LLC
state on 1 November 2018 that Google LLC has removed the Blog. The Petitioner
had also merely stated that the Blog was removed in May 2018 itself and did not
state that Google had deleted the Blog. It is submitted that this statement in
Justice Mukta Gupta’s Order dated 1 November 2018 does not state that Google
deleted the Blog. It might however create a factually incorrect impression that
Google deleted the Blog in so far as it states that the Blog was removed with
the intervention of Google LLC. Hence it is prayed that the words “With the
intervention of respondent No. 5” be deleted from this sentence and that the
Order dated 1 November 2018 be modified/ corrected accordingly to accurately
reflect the facts on record before this Hon’ble Court.
15. The Petitioner points out that the failure of
the lawyers appearing for Google LLC to correct this falsehood floated in the
Police Status Report dated 25 October 2018 is
suspicious and leads to the inference that the lawyers appearing for Google LLC
have obstructed the administration of justice.
16. An enquiry is needed into how the false
status report dated 25 October 2018 came to be filed and who was instrumental in
using the Saket Police Station Police Officers to impersonate as the
Investigating Officers in this case. It is pointed out that no notice in this
matter was directly sent to the Commissioner of Police. Mr Rahul Mehra Advocate
himself accepted service and notice on behalf of Respondent 3 in his capacity
as then Standing Counsel Criminal. Was the Office of the Commissioner of Police
(Respondent 3) and Police Headquarters informed about this case by Mr Rahul
Mehra. Who communicated about this case with the Delhi Police? Which Officers
of the Delhi Police were informed about this case? And where and what is the
correspondence informing the Delhi Police about this case. This information is
necessary to fix liability for the fraud that has been committed upon this
Hon’ble Court by the false Status Report dated 25 October 2018 filed by Police
Officers of Saket Police Station who falsely impersonated as the Investigating
Officers in this matter and participated in the criminal conspiracy to scuttle
any investigation in this case. It must also be investigated as to how did the
Saket Police Station officers file the Status Report on 25 October 2018? Who
approached them? Which lawyers were involved?
17. Conduct of lawyers who claim to appear in
this case for Google LLC- The Petitioner impleaded both Google LLC and Google
India. Counsel appearing for Google LLC prevented the issuance of Court notice
to Google India by misleading the Hon’ble Court. (See Orders dated 27 April
2018 and 1 November 2018).
18. The Petitioner submits that Google India is a
necessary and relevant party and Court notice must be issued to Google India,
Respondent No, 6.
19. The Petitioner also seeks the issuance of
Court notice to Google LLC’s Grievance Officer for India at the address given
below on the Google website.
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https://www.google.com/intl/en_in/contact/grievance-officer.html (b) For reporting any other matter
pertaining to Google products If your concern pertains to any matter
other than a legal request for removal of content from any Google product,
you may refer to the help center resources available at Google Help where you
can find information about our products and services, including
troubleshooting information for common issues. Various Google products are
managed and have their policies administered by dedicated teams and we urge
you to refer to the guidance from the relevant product team. If you are unable to find guidance about
your concern on these resources, you may reach out through the Grievance
Redressal Mechanism by sending an email to support-in@google.com. In your
mail addressed to support-in@google.com you must provide the name of the
Google product in question, describe the issue in detail, and any supporting
document including screenshots that would assist with the resolution of your
concern. NOTE: Please do not use
support-in@google.com to submit requests related to removal of content. 3. Service of Summons or notices to Google
LLC in India If you would like to serve any summons or
notices in civil proceedings against Google LLC in India, the below email ID and
address can be used. Please use the options for reporting content for removal
as listed in Section 1 above instead if you are not serving any summons or
notices in civil proceedings. Google LLC attn: Jennifer Thomason 1600 Amphitheatre Parkway Mountain View, CA 94043 USA E-Mail: support-in@google.com |
20. Order dated 1 November 2018 passed in this
matter shows another problem with how this matter has progressed thus far.
21. The Police has not registered an FIR and has
not undertaken any independent investigation. The Police has not even spoken to
the Petitioner.
22. Instead the Court has issued piecemeal
directions for action to the Police and Google LLC which directions it is
submitted have been influenced by the lawyers appearing for Google LLC and in
particular by a lady lawyer Ms Shruttima Ehersa who has been the only lawyer to
appear for Google LLC on all dates since 1 November 2018.
23. These directions issued by the Court to the
Police since 1 November 2018 have it is submitted been piecemeal,
counterproductive, ineffective, and have also not been complied with.
24. On 1 November 2018, this Court issued the
following directions.
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However, to further investigate into the
matter as to who created and installed the blog, it would be necessary to
have the information from respondent No.5 as to the IP address and the user
ID of the person or organization which created the blog. Respondents
No. 5 is thus directed to provide basic subscriber including the IP address
and registration details of gmail account ‘seemasapraalert@gmail.com’ to the DCP Cyber Cell (Crime), Delhi Police and place the copy of the report in this
regard on record before the next date. List for necessary report from respondent
No.5 on 22nd January, 2019. |
25. This particular order came to be passed
because Ms Shruttima Ehersa appearing for Google LLC handed over a note to the
Court which suggested this.
26. Please note that the order failed to direct
the Police to investigate as to who created and published the Blog. The order
also failed to direct Google LLC to provide identifying information about who
created and published the Blog. Instead, the direction was limited to
Respondent No. 5 providing basic subscriber including the IP address and
registration details of gmail account ‘seemasapraalert@gmail.com’, and this
happened only because Ms Shruttima Ehersa handed over a note to the Court. The
Petitioner submits that this was a deliberate act on behalf of lawyers
appearing for Google LLC to misdirect and scuttle the investigation.
27. The Problem with this direction in the order
dated 1 November 2018 is that it simply assumes without any inquiry that the
Blog was created using the Gmail seemasapraalert@gmail.com as a login ID. It is submitted that we do not even know what ID and email
was used to create the Blog and Google LLC should first have been directed to
disclose the ID and Email of the Blogger account used to create the Blog. And
Google LLC should then have been directed to provide all available information
including IP addresses etc of that Blogger account that was used to create the
Blog. The direction in the order dated 1 November 2018 was therefore inadequate
and incomplete.
28. It is submitted that this Hon’ble Court must
first direct the Delhi Police to register an FIR, it must ask Delhi Police to
identify the IO who must be a DCP level Officer, and the Delhi Police must be
directed to independently investigate as to who created the Blog. Google LLC
and Google India are legally required to provide all information and assistance
to Delhi Police and the Delhi Police acting through a DCP level Officer must be
given a free hand to obtain all necessary information from Google LLC and
Google India for the investigation of the Petitioner’s complaints set out in
the Writ Petition.
29. The Gmail seemasapraalert@gmail.com was mentioned on the Blog itself. This email also needs to be probed
but it cannot simply be assumed that the Blog was created using this email as
login ID.
30. Again the order dated 1 November 2018 did not
direct the Police to investigate.
31. The matter was listed again on 22 January
2019 when the following directions were issued.
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On the last date of hearing, this Court had
directed respondent No.5 to provide basic subscriber details including
the IP address registration details of gmail account
seemasapraalert@gmail.com to the DCP Cyber Cell (Crime), Delhi Police. Learned counsel
for respondent No.5 states that the basic subscriber information was
e-mailed. On checking the e-mail it is found that the said e-mail has been sent to
the SHO, PS Saket and not to the DCP Cyber Cell (Crime Branch) and that too
on 19th January, 2019. A copy of the same has been filed in sealed cover
before this Court which has been opened and perused. Respondent No.5 will send the necessary
details as required vide order dated November, 01, 2018 to the DCP
Cyber Cell (Crime Branch) within a week on the Standing counsel of
the Government of NCT Delhi providing the e-mail address of the DCP
Cyber Cell (Crime) to the learned counsel for respondent No.5 today itself. On the necessary details being provided by
the respondent No.5, DCP Cyber Cell (Crime) will further investigate
in the matter and file a status report before the next date. Renotify on 20th March, 2019. |
32. The Petitioner again draws attention to the
conduct of lawyers for Google LLC as noted by the Court in its order dated 22
January 2019. Why was the information mailed and that too belatedly to SHO
Saket in violation of the order dated 1 November 2018 and why was it filed in
Court in sealed cover. The conduct of the lawyers appearing for Google LLC here
again shows their attempts to scuttle any investigation.
34. The matter was listed on 20 March 2019 when
the following order was passed.
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1. Petitioner who appears in person seeks
time to file response to the communication placed on record by
respondent No.5 as also the status report filed by the State. The same be
filed within four weeks. 2. A perusal of the status report filed by
the DCP, Cyber Cell, Crime Branch dated 18th March, 2019 in para h
reveals that request was made by the investigating agency on 2nd March, 2019
to Google to provide other information i.e. recovery e-mail id,
recovery mobile number and log-in /log- out IP address details with specific date
and time. Despite a reminder being sent on 11th March, 2019 no reply has been
received. 3. Learned counsel for respondent No.5 will
ensure that the details as sought by the police for investigating the
matter as noted in para h of the status report filed by the DCP concerned
are made available to the DCP, Cyber Cell, Crime Branch within three
weeks. 4. The DCP Cyber
Cell, Crime Branch will also find out from the Airtel as
to whether data beyond one year is available or not because even if under the
license agreement issued by DoT the Airtel may destroy data beyond one year,
it has to be clarified in this case whether the said data has been destroyed
or is available. Respondent
No.5 had placed the basic subscriber information and registration details
associated with seemasapraalert@gmail.com in a sealed cover
on 18th January, 2019 which seal cover was opened. Respondent No.5 is
directed to file the said documents along with certificate under
Section 65(B) of the Indian Evidence Act. 5. The State will also file the documents
referred to in the status report along with the next status report within
two weeks with advance copy to the petitioner who appears in person. 6. Henceforth any status report filed in
this case would be under the signatures of the DCP concerned and after
approval of the Special Commissioner of Police, Crime Branch. 7. List on 14th May, 2019. 8. Order dasti. |
35. A 30 page status report was filed by the DCP,
Cyber Cell, Crime Branch dated 7 May, 2019. This was signed by Dr Joy Tirkey.
This was a 7 page report with documents annexed at pages 8-30.
36. A copy of a Section 65-B Certificate of one
Ms Lily Kley was filed by Google LLC’s lawyers on 9 May 2019.
37. The matter was listed on 14 May 2019 when the
following order was passed.
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Status report has been filed on behalf of
the State as also a certificate under Section 65B of the Indian Evidence
Act, 1872 on behalf of Google LLC. Petitioner who appears in person states
that formatting in the same Email has changed at three places and thus,
there is a fabrication of documents. She further states that the
certificate under Section 65B of the Indian Evidence Act, 1872 filed by Google
LLC is not a certificate in the eyes of law as it is a document which has
been received from another country and is not notarised. She seeks
time to file response to the status report and the documents filed. She also
seeks time to file response to the certificate filed by Google LLC under
Section 65 of the Indian Evidence Act. Responses be filed within four weeks. List on 31st July, 2019. |
38. The next order in which directions were
passed by the Court was on 14 March 2022.
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1. Ms. Manjeet Arya, learned APP for the
State, seeks an opportunity to file the latest Status Report. 2. The Status Report may be filed within
three weeks, with advance copy to the opposite side. In the Status
Report, the Investigating Officer may disclose the compliance of all the previous
orders and effective steps taken to trace the identity of the one
responsible for the anonymous blog. 3. List on 16th August, 2022. 4. The order be uploaded on the website
forthwith. |
39. A 6 page status report was filed by the DCP,
Cyber Cell, Crime Branch dated 31 March 2022. This was signed by K P S
Malhotra.
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A perusal of the status report filed by the
DCP, Cyber Cell, Crime Branch dated 18th March, 2019 in para h
reveals that request was made by the investigating agency on 2nd March, 2019
to Google to provide other information i.e. recovery e-mail id,
recovery mobile number and log-in /log- out IP address details with specific date
and time. Despite a reminder being sent on 11th March, 2019 no reply has been
received. 3. Learned counsel for respondent No.5 will
ensure that the details as sought by the police for investigating the
matter as noted in para h of the status report filed by the DCP concerned
are made available to the DCP, Cyber Cell, Crime Branch within three
weeks. |
41. The Petitioner submits that this Hon’ble
Court issue a direction directly to Google LLC in this regard instead of a
direction to Counsel for Respondent 5 and that the Delhi Police be directed to
directly contact Google LLC for furnishing the requested information in
compliance of the Court direction without going through the lawyers as
intermediaries.
42. On page 30 of the Police Status Report dated 7/5/2019
is a copy of an email dated 7/5/2019 allegedly sent from Google to Delhi Police
wherein it is stated: “Google LLC is not withholding any responsive information
to Court Order dated November 1, 2018, reference number 437/2018. We have
provided responsive information to the extent reasonably accessible and
available from our system”.
43. The Petitioner submits that this email dated
7/5/2019 sent by Google LLC to Delhi Police does not even mention Order dated
20 March 2019 wherein Google LLC was directed to comply with the Police’s
request for further information. And what does “to the extent reasonably
accessible and available from our system” even mean? This email sent by Google
bears the same date as the status report.
44. Even more disturbing is the attempt by the
Delhi Police in its Status Report filed on 31/3/22 under the signature of DCP K
P S Malhotra to suppress the directions issued to Google LLC in order dated 20
March 2019 even though this order was duly noted in the status report dated
7/5/2019. In doing so, Delhi Police has clearly colluded in the attempt to
scuttle any investigation.
45. No further steps have been taken by Delhi
Police after May 2019 until today (March 2023) to obtain relevant information
from Google in respect of the Petitioner’s complaints.
46. The following direction issued by this Court
on 20 March 2019 in respect of Airtel has also till date not been complied with
by Delhi Police DCP Cyber Cell, Crime Branch.
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The DCP Cyber Cell,
Crime Branch will also find out from the Airtel as to whether data beyond one year is
available or not because even if under the license agreement issued by DoT the
Airtel may destroy data beyond one year, it has to be clarified in this case
whether the said data has been destroyed or is available. |
47. In its Status Report dated 7 May 2019, Delhi
Police has annexed on page 21, an email received from Airtel dated 12 April
2019 which states: “This is to inform you that the
request in above attached letter for IP search query for the period of 10/03/14
is not available in our front end module. We are
searching the said IP in system archive and it will take some time. Once the
search will complete we will informed you accordingly.” The sender of this
email is not named but the email address used was delhicircle.nodalofficer@airtel.com.
48. There has been no follow-up from Delhi Police
thereafter. The Delhi Police did not even bother to ask Airtel how much time
this would take. The Petitioner submits that searching digital records even in
archives is not something that would take days.
49. In an attempt to cover up its failure to
comply with the court direction and with intent to scuttle the investigation
and mislead the Court, the Delhi Police in the text of its status reports dated
7 May 2019 and 31 March 2022 merely repeats Airtel’s response that “This is to inform you that the request in above attached
letter for IP search query for the period of 10/03/14 is not available in our
front end module”, and omits the portion where Airtel had stated that “We
are searching the said IP in system archive and it will take some time. Once
the search will complete we will informed you accordingly.”
50. Further the Status Report filed on 31 March
2022 refers to a response from Airtel dated 23.4.2019, whereas no such response
of this date forms part of the Annexures to the Status Report of 7 May 2019.
There is a strange undated document on page 23 of the Status Report dated 7 May
2019 which is an undated letter (not an email) with the sender not named where
again it is repeated that the IP detail “is not available in our CDR front end
module system”, with again no confirmation as to whether the data is otherwise
available or deleted.
51. The Petitioner submits that Delhi Police has
clearly failed to comply with the direction in order dated 20 March 2019 to
make further enquiries from Airtel. And it has attempted to mislead the Court
in this respect in its status reports.
52. The Petitioner relies upon the information
publicly provided by Google on the internet about Requests for User
Information. Available at https://support.google.com/transparencyreport/answer/9713961?hl=en#zippy=%2Chow-does-google-handle-government-requests-for-user-information%2Cif-google-receives-a-request-for-user-information-will-google-tell-the-account-holder-about-it%2Cdoes-google-give-governments-direct-access-to-user-information%2Chow-can-government-agencies-send-legal-requests-to-google%2Cwhat-if-i-want-to-give-a-government-agency-information-from-my-google-account%2Cwhat-kinds-of-information-do-you-disclose-for-different-products%2Cwhat-is-a-preservation-request-and-are-preservation-requests-included-in-the-total-number-of-requests%2Cwhat-is-a-government-request-for-user-information%2Cwhat-is-a-mutual-legal-assistance-treaty-mlat accessed on 5 March 2023.
Filed by
Petitioner in Person
6 March 2023
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