Weeks before the Palghar police arrested two local girls by deeming it fit the invocation of Section 66A of the Information Technology (IT) Act against a Facebook post uploaded by one of them and liked by the other, the Mumbai police crime branch had made a submission before the state home minister for suggesting changes in the terminology of the contentious act to avoid ambiguity in its application.
"An oral submission had been made before the home minister, asking if the terminology of the Act (Section 66A) can be better drafted so as to avoid ambiguity in its application," confirmed additional commissioner of police, crime, Niket Kaushik.
The home department was in the process of making a proposal to the Centre (as IT Act is a Central Act) when the Palghar incident happened, highly placed sources in the crime branch said.
Sources said that the suggestion had been made in the wake of the practical difficulty being faced by junior-level officers in the cyber police station at the BKC as well as the Cyber Crime Investigation Cell (CCIC) while investigating complaints attracting the provisions of the Section.
"Though it is one of the mildest of all Sections under the IT Act, it is the most ambiguous," a source said, reasoning the crime branch move.
Not only this, the Mumbai police has been trading cautiously over the application of the entire IT Act since almost two years, knowing well that the provisions under the new Central legislation could be mis-understood and thereby misapplied by junior level officers.
In March-April 2011, former Mumbai police commissioner Arup Patnaik had issued clear cut instructions to the CCIC and the cyber police station at the BKC, not to register an FIR unless the application of the IT Act was approved by the joint commissioner of police (crime) and written orders issued by his office to that effect.
"Since then, standing instruction is in place for investigating officers (IO) to take complaints in writing. Before registering the offence, the IO has to explain it in writing before the higher authorities (additional commissioner of police who will forward it to the joint commissioner) the grounds for registering the offence (FIR). Only after obtaining permission, can the FIR be registered in such cases," Kaushik said.
Moreover, for effecting arrest, separate permission has to be taken (for every case) by the IO, justifying why arrest (or custodial interrogation) was necessary. It is only after the joint commissioner of police gave a go ahead, can the arrest be effected.
"Extreme caution has been maintained for prosecution in cases related to offences related to the IT Act by the Mumbai police," Kaushik said adding that it was due to the cautious approach, controversies could be kept at the bay in all these years.
In fact, Kaushik said that of the 80-odd cases registered by the crime branch under various sections of the IT Act, arrests were effected in "very few" of them. Sources in the CCIC said that most of the cases had been chargesheeted as judicial intervention was sought for effecting arrests.
Needless to say the latest central guideline-junior officers to seek permission from superintendents of police (SPs) in rural areas and an inspector general (IG) rank officer in metros, before registering an offence under IT Act-replicates the practice that has been followed by the Mumbai police since the past two years.