While striking the right chord at the right time, it is most heartening to note that the Karnataka High Court in a most learned, laudable, landmark, latest and logical judgment titled XYZ vs The Registrar General & Ors in Writ Petition No.25557 of 2023 (GM – RES) that was initially reserved on 14.02.2024 and as we see was then finally pronounced on 28.02.2024 permitted the plea of a man who was falsely implicated in a POCSO case to mask his name in digital records of the Court. It must be noted that the Karnataka High Court maintained that after the accused gets blame-free by a process of law, he cannot be seen to be carrying the sword of him being accused on his head for all his life. No wonder, the petitioner was compelled to approach the court on the premise that when the name of the petitioner was clicked on any search engine, it revealed him to be an accused in a sexual harassment case.
It merits mentioning that the Karnataka High Court discussed quite in detail the quashing of criminal proceedings under Section 482 of CrPC due to frivolous or vengeful reasons and opined most clearly, concisely and convincingly that, “It is therefore, after the accused gets blame-free by a process of law, he cannot be seen to be carrying the sword of him being the accused on his head, for all his life. Right to oblivion; right to be forgotten are the principles evolved by the democratic nations, as one being a facet of right to informational privacy.” We thus see that the Bengaluru High Court very rightly allowed the writ petition and so also very commendably directed the Registrar General of the High Court of Karnataka to mask the name of the petitioner in its digital records.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner is before this Court seeking a direction to the Registry of this Court to remove the name of the petitioner from the digital records maintained in Criminal Petition No.8172 of 2021 and not to reflect the name of the petitioner in relation to Criminal Petition No.8172 of 2021.”
To put things in perspective, the Bench while elaborating on the facts of the case envisages in para 3 that, “Sans details, facts in brief, are as follows:-
On 28-09-2021, one Sri. xxxx registers a complaint before the Station House Officer of S.S. Puram Police Station, Tumkur alleging, that when his daughter xxxxxx xxxxxxxx , aged about 16 years was attending online classes from home, the petitioner, a tenant in the house of one Gangadaraiah abutting the house of the complainant, had developed contact with his daughter which he had noticed from the room of his house. It is alleged that he had noticed that the petitioner began to make gestures from his window, to the window of the daughter of the complainant, when she was attending online classes. It is the complaint averment that the father checks the mobile phone of his daughter without her knowledge and discovered that the petitioner was sending messages on whats app which were sexually intimidating and which were in the nature of trying to force her to have sexual intercourse with him. Plethora of texts had been exchanged between his daughter and the petitioner. This complaint becomes a crime in Crime No.105 of 2021 for offences punishable under Sections 354A and 354B of the IPC and Section 12 of the POCSO Act. Investigation commenced against the petitioner after registration of crime.”
As we see, the Bench then observes in para 4 that, “The Police conduct a detailed investigation and file a ‘B’ report observing that it was a false case registered against the petitioner. By then, the petitioner had filed Criminal Petition No.8172 of 2021 before this Court. In view of filing of the ‘B’ report, this Court disposed the petition in terms of its order dated 02-02-2022. After the said order being passed by this Court, the concerned Court, after hearing the parties, accepted the ‘B’ report and discharged the accused i.e., the petitioner.”
As it turned out, the Bench enunciates in para 9 that, “The afore-narrated facts are not in dispute. The petitioner is alleged of exchanging lewd messages with the daughter of the complainant. Therefore, the crime comes to be registered in Crime No.105 of 2021. The police conduct investigation and in the detailed final report would opine that it was a false case and, therefore, ‘B’ report is filed. The concerned Court accepts the ‘B’ report and closes the proceedings against the petitioner by discharging him of the allegations. The situation is that the petitioner who was once an accused becomes blame free today. The charge sheet itself was not filed against him, as the investigation led to filing of ‘B’ report. The ‘B’ report, even after it being notified to the complainant was not contested and, therefore, the petitioner was discharged on acceptance of ‘B’ report resulting in closure of the case. In those circumstances, the name of the petitioner being dubbed as an accused even after the aforesaid circumstance, undoubtedly leads to grave prejudice to the petitioner. He is on a higher pedestal than any of the accused who would get acquitted after a full blown trial. The petitioner, at the threshold itself, is declared to be innocent. The issue is whether the name of the petitioner-accused should be masked in the digital records of this Court. She would submit that the other respondents have already yielded to the request of the petitioner and have masked the name of the petitioner in their records. What remains is only the masking of the name in the digital records of this Court.”
Do note, the Bench notes in para 10 that, “The law in this regard cannot be termed to be static, but dynamic. Dynamic, I deem it necessary to observe, as it should evolve like evolution of the Constitution of India, which is a dynamic document. A facet of Article 21 of the Constitution of India is that every citizen in the country should have a life with dignity; the dignity does get trampled on account of various acts of a citizen. Those acts are punishable after a due process of law. If the result of due process of law is absolving of any person of alleged guilt, those persons become the ones who would get a right to live with dignity, having no blame against them.”
Most remarkably, the Bench propounds in para 11 stating briefly that, “This Court, in plethora of cases, comes about issues where crimes are registered without any rhyme or reason and lead to quashment of those proceedings in exercise of its jurisdiction under Section 482 of the Cr.P.C., sometimes on the sole score that it was frivolous or an act of wreaking vengeance, inter alia. It is therefore, after the accused gets blame-free by a process of law, he cannot be seen to be carrying the sword of him being accused on his head, for all his life. Right to oblivion; right to be forgotten are the principles evolved by the democratic nations, as one being a facet of right to informational privacy. Countries like France and Italy, had by themselves evolved the concept of right to oblivion, which dates back to 19th century. Europe, in the European Union has, over privacy and personal data, evolved the principle of right to be forgotten, as a right to be a part of ones right to personality, which encompasses dignity, honour and right to a private life. The aforesaid principles evolved from time to time, can be paraphrased into what could become right to life under Article 21 of the Constitution of India. It becomes apposite to refer to the judgment of the Apex Court in the case of JUSTICE K.S. PUTTASWAMY(RETD) v. UNION OF INDIA (2017) 10 SCC 1.
The Apex Court considers the entire spectrum the right to privacy and the ‘right to be forgotten’ evolved in the European Union Regulation of 2016, by the European Parliament. The Apex Court recognizes the right to be forgotten to be a basic right under the right to informational privacy. It has observed the right of an individual to exercise control over his personal data and, to be able to control his or her own life would encompass his right to control over its existence on the internet. The Apex Court observes that the impact of digital age results in information on the internet being permanent. Humans forget, but the internet does not forget and does not let humans forget. Therefore, the soul of the judgment of the Apex Court quoted supra is that the footprints in certain circumstances should not be permitted to remain, as it is an anti-thesis to right to be forgotten.”
Be it noted, the Bench notes in para 14 that, “Evolving this concept of a right to be forgotten or right to erasure have been the subject matter of the Personal Data Protection Bills notified from time to time. The Personal Data Protection Bill, 2018 recognizes the right to be forgotten. Likewise, the Personal Data Protection Bill, 2018 also recognizes the right to correction and erasure. The Government of India notifies the Digital Personal Data Protection Act, 2023, on 11th August, 2023, to come into force from the date of its publication in the official gazette. The Act also recognizes the right of erasure of personal data. The aforesaid are referred only to lay emphasis, on the fact that the law in this regard is also evolving in the country.”
Most forthrightly, the Bench expounds in para 17 that, “Article 21 of the Constitution of India mandates that no person shall be deprived of his life or liberty except in accordance with law. The expression ‘life’ cannot be seem to connote a mere animal existence, it has a much wider meaning. It takes within its sweep right to live with dignity. In the crime, once the accused gets acquitted – honourably, discharged by a competent Court of law, or this Court would quash those crimes in exercise of its jurisdiction under Section 482 of the Cr.P.C. and those orders become final, the shadow of crime, if permitted to continue in place of shadow of dignity, on any citizen, it would be travesty of the concept of life under Article 21 of the Constitution of India. Every citizen born in this nation, governed by the Constitution, has a right to live with dignity. What is being sought for is masking of the name of the petitioner in the cause title of the case found in the records of this Court.”
Most significantly, the Bench holds in para 18 what constitutes the cornerstone of this notable judgment that, “In the peculiar facts of the case, no fault can be found with such a demand. I deem it appropriate to observe that when identical demands are made by those accused or victims, as the case would be, accused who come within the circumstances narrated hereinbefore, the Fourth Estate should also consider masking, delisting and deleting their names from their respective digital records and not drive them to this Court seeking such deletion. However, it is made clear that mere erasure of the name of the petitioner in the cause title, does not mean that he is entitled to seek such erasure from the police records. The direction would be only to enable the internet forget, like the humans forget. If it is allowed to stay on record, the internet will never permit the humans to forget.”
Finally, the Bench concludes by holding in para 19 that, “For the aforesaid reasons, I pass the following:
O R D E R
(i) Writ Petition is allowed.
(ii) The Registrar General of the High Court of Karnataka is directed to mask the name of the petitioner in its digital records pertaining to Criminal Petition No.8172 of 2021 forthwith.”
All told, we thus see that the Karnataka High Court while giving its stamp of approval to the concept of “right to be forgotten” allows the plea of man who was implicated in false POCSO case to mask his name from court’s digital records. There can be no gainsaying that all the courts in similar such cases must emulate this worthy judgment as should be done also in similar such cases. No denying or disputing it!
Sanjeev Sirohi