They were released on bail by Additional Sessions judge
While the recent arrest of two young women from Palghar grabbed media attention, what was not so well known was the case of two Air India employees who were arrested under Section 66 A and 67 A of the Information Technology (IT) Act in May and jailed for 12 days. The two decided to go public with their woes after the outrage over the girls’ arrests, hoping for some justice.
Thirty-one-year-old Mayank Sharma had returned home after celebrating his wife’s birthday on the night of May 10, 2012, when his doorbell rang at 1.30 a.m. Waiting outside were plainclothes policemen and two in uniform armed with semi-automatic weapons. “They told me to come to the police station with them and when I asked why, they just stared at me,” Mr. Sharma, who works as a cabin crew member of Air India told The Hindu.
Inspector Dinkar Shilwate followed him into the bedroom to make sure he changed his clothes and stared all the while he was doing so. When he tried to call a family member in New Delhi, the police snatched away his mobile phone. They later confiscated his laptop. While this was happening, in Thane, a group of policemen were outside the 15th floor apartment of Air India senior purser K.V. Jaganatharao, 50. The police asked him to accompany them and when he resisted, they told him they had a search and seize warrant. They insisted he come in the police jeep and his family too went along in the dead of night.
They asked Mr. Sharma and Mr. Jaganatharao three questions before they were formally arrested at around 7.30 a.m. on May 11. Whether they had insulted politicians, did they threaten to bomb and kill politicians and did they insult the national flag? All along the route to the cyber police station in Bandra Kurla Complex (BKC) the police kept taunting Mr. Sharma asking him if he wasn’t scared of politicians.
Unlike the Palghar case where the two girls who were charged under Section 66 A of the IT Act got bail immediately, the two Air India employees, active trade union leaders, were in custody for 12 days. The first complaint against them was made by rival trade union leader Kiran Pawaskar from the Shiv Sena who later joined the Nationalist Congress Party (NCP). No one acted on Mr. Pawaskar’s complaint on July 1, 2011 to a senior police officer Vishwas Nangre Patil. This was forwarded to the cyber police station, where police lodged a first information report (FIR) on March 29, 2012 accusing the two of uploading lascivious and defamatory content on social networking sites Facebook and Orkut against the complainant and politicians and also threatening the complainant Sagar Karnik (also of Air India) with death, and insulting the national flag. They were charged with Section 506(2) of the Indian Penal Code and Section 66 A and 67, of the IT Act, apart from Section two of the Prevention of Insults to National Honour Act 1971 by investigating officer Inspector Sunil Ghosalkar of the cyber police station.
On May 22, they were released on bail by Additional Sessions judge N.R. Borkar who held that it appeared that Section 67 A of the IT Act was not invoked at the time of registration of the FIR and was included while seeking remand. Mr. Jaganatharao told The Hindu that while the original FIR did not have Section 67 A as a charge, it was added by hand by the investigating officer and when this was brought to the judge’s notice, bail was granted. The section which refers to punishment for publishing sexually explicit acts in electronic form, is a non-bailable offence.
The police also took away their Air India identity cards, their passports, their laptops and mobile phones. The police in the remand report stated that there was a dispute in the cabin crew unions between Mr. Karnik and Mr. Sharma and Jaganatharao over the president’s post and they campaigned against Mr. Karnik and others using social networking sites. Union Ministers were also allegedly vilified. In addition the two allegedly threatened to kill the complainant or bomb him, and also insulted the Supreme Court and the national flag. One of the reasons for remand the police cited was the need to investigate whether Mr. Sharma and Jaganatharao had arms or explosives to carry out their threats.
It was only on May 18 that the magistrate allowed the two home-cooked food and their own clothes which the police opposed in court. Mr. Sharma and Mr. Jaganatharao had to approach the Bombay High Court for release of their passports which was done by an order of October 25. They cited a Supreme Court ruling of 2008 which says while the police may have the power to seize a passport under Section 102(1) of the Criminal Procedure Code, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authorities under Section 10(3) of the Passports Act, 1967.
After they got their passports back, they wrote a letter to Air India saying that they were in possession of their travel and identity documents. On November 21, Air India in a reply letter said they were placed under suspension from the date of arrest, May 11 till the time of release on bail, May 22. The letter said they would be assigned flight duties after completion of necessary formalities. Both are getting only their salaries minus their allowances.
A counter complaint was filed against Mr. Karnik that he allegedly threatened to kill Mr. Jaganatharao online but no action was action. This was a clear case of misusing the IT Act and the police by Mr. Pawaskar, alleged Mr. Sharma and Mr. Jaganatharao.
The police are yet to file a charge sheet in the matter.