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Nithish.P v. The Union of India

Madras High Court

Aug 2, 2022

Judgment

CaseIQ

Smart Summary (Beta)

Factual and Procedural Background

The writ petitioner, an engineering graduate from Sivakasi, was implicated in Crime No.2 of 2020 at the All Women Police Station, Sivakasi. The case involved allegations under Sections 13, 14(1), 16, 17 of the Prohibition of Child from Sexual Offences Act and Section 67(b) of the Information Technology Act, based on a complaint alleging that the petitioner shared pornographic pictures of children via his Instagram account on 05.05.2019. The petitioner was arrested on 15.02.2020 and released on bail on 03.03.2020. Subsequently, the petitioner filed Criminal Original Petition (MD) No.12441 of 2020 seeking quashing of the criminal case. After hearing both sides, the prosecution was quashed on the ground that there was no evidence on the petitioner’s mobile phone indicating that such pictures were uploaded or deleted. The petitioner now seeks expungement of all criminal records relating to the case from the public domain, including paper and digital records accessible through search engines, to protect his future career prospects.

Legal Issues Presented

Whether the petitioner’s criminal records, which relate to a quashed case, should be expunged from the public domain including digital and paper records.
Whether the right to be forgotten can be invoked to remove judicial records from public access in this case.
The scope and application of the right to be forgotten in the context of judicial records and digital searchability.

Arguments of the Parties

Petitioner’s Arguments

The petitioner contended that the records relating to his case should not be publicly accessible as it adversely affects his reputation and future career prospects.
The petitioner’s counsel invoked the right to be forgotten, arguing that every individual has this right to protect their privacy and reputation.

Respondents’ Position

The Assistant Solicitor General acknowledged the fundamental right to privacy as recognized by the Supreme Court in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
Noted that the right to be forgotten is an evolving concept in India and has been accepted by courts on a case-by-case basis.
Referred to precedents from various High Courts including Orissa High Court in Subhranshu Rout v. State of Odisha, Karnataka High Court in Vasunathan v. Register General, and Delhi High Court in Jorawer Singh Mundy v. Union of India.
Mentioned a recent Supreme Court interim direction in XXXX Vs. Kacherla Durga Prasad & Ors to mask parties’ names and addresses from search engines.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1	Recognition of Right to Privacy as a fundamental right.	Established foundational basis for considering privacy-related relief including the evolving right to be forgotten.
Subhranshu Rout v. State of Odisha (BLAPL No.4592/2020)	Acceptance of the right to be forgotten on a case-by-case basis.	Supported the court’s approach to consider privacy and expungement of records selectively.
Vasunathan v. Register General (2017 SCC Online Kar 424)	Doctrine of right to be forgotten in Indian jurisprudence.	Reinforced the evolving acceptance of privacy rights in judicial contexts.
Jorawer Singh Mundy v. Union of India (2021 SCC Online Del 2306)	Pending case on right to be forgotten.	Indicative of ongoing judicial consideration of privacy and expungement rights.
XXXX Vs. Kacherla Durga Prasad & Ors (SLP (Crl) No.3211/2022)	Interim direction for masking names and addresses in search engines.	Informed the court’s direction to block public access to petitioner’s records via search engines.

Court's Reasoning and Analysis

The Court recognized that while the broader issue of the right to be forgotten in judicial records is contentious and a learned Judge of the same Court had previously held that it cannot be generally invoked for judicial records, relief can be granted on a case-by-case basis. Considering the petitioner was falsely implicated and the criminal case was quashed under Section 482 CrPC for lack of evidence, the Court acknowledged the serious reputational harm caused by digital accessibility of such records. The Court noted the evolving jurisprudence on privacy and the right to be forgotten, referencing Supreme Court and High Court decisions. Emphasizing the practical realities of internet search and employment background checks, the Court deemed it appropriate to issue specific directions to block the petitioner’s records from public and digital domains to prevent further injury to his reputation.

Holding and Implications

The Court’s final decision is as follows:

The writ petition is disposed of with directions to block and expunge the petitioner’s criminal records from public and digital domains, including search engines and official databases such as CCTNS.
The State Government authorities and relevant respondents are directed to ensure that details of the petitioner’s case are not accessible publicly or to third parties.
The petitioner is permitted to approach Indian Kanoon to block online access to the related judgment.
The petitioner is granted liberty to approach any authority for enforcement of this order, which authorities are bound to comply with.

Implications: This decision directly benefits the petitioner by protecting his privacy and reputation through removal of records from public access. The Court consciously refrained from establishing a broad precedent on the right to be forgotten for judicial records, limiting the relief to the special facts of this case.

Show all summary ...

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 01.09.2022

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

P.N... ... Petitioner

Vs.

1.The Union of India, Rep. by its Home Secretary, Ministry and Home Affairs, New Delhi - 110 001. 2.The Union of India, Rep. by its Secretary, Ministry of Electronic and Info Technology, A Block, CGO Complex,

Lodhi Road, New Delhi.

3.The State of Tamil Nadu,

Rep. by its Secretory,

Home Department,

Fort St.George,

Chennai - 600 009.

4.The State of Tamil Nadu,

Rep. by its Principal Secretary, Information Technology and Digital Services Department, Information Technology Department,

Secretariat, Chennai - 600 009.

5.The Director,

National Crime Records Bureau,

NH-8 Service Road,

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Mahaipalpur, Delhi - 110 037. 6.The Superintendent of Police, Virudhunagar District. 7.The Inspector of Police, All Women Police Station, Sivakasi,

Virudhunagar District. 8.The State Crimes Record Bureau, Represented by its Secretary, Chennai. ... Respondents

(R6 to R8 are suo motu impleaded vide order dated 01.09.2022 in W.P.(MD)No.17228 of 2022 by GRSJ)

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the respondents to expunge/ expunct the criminal records from the public domain both on paper works and digital records particularly which are available through search engines, pertaining to the petitioner in crime No.2 of 2020 on the file of All women Police Station, Sivakasi in view of the order passed by this Court in Cr.O.P.(MD) No.12441 of 2020 by considering the petitioner's representation dated 18.04.2022 within the time that may be stipulated by this Court. For Petitioner : Mr.Ajmalkhan,

For M/s.Ajmal Associates.

For Respondents : Mrs.L.Victoria Gowri,

Asst. Solicitor General for R1, R2 & R5.

Mr.M.Sarangan,

Addl. Govt. Pleader for R3, R4, R6 to R8.

2/10

ORDER

Heard the learned senior counsel for the petitioner, the learned Assistant Solicitor General for the respondents 1, 2 and 5 and the learned Additional Government Pleader for the respondents 3, 4 and 6 to 8. 2.The writ petitioner hails from Sivakasi. He is an engineering graduate. He came to be implicated in Crime No.2 of 2020 registered on the file of All Women Police Station, Sivakasi, for the offences under Sections 13, 14(1), 16, 17 of Prohibition of Child from Sexual Offences Act and Section 67(b),(b) of Information Technology Act. The case was registered based on the complaint given by the Sub Inspector of Police, Cyber Crime Branch, Virudhunagar District. It was alleged that the petitioner had shared pornographic pictures of children though his Instragram account on 05.05.2019. The petitioner was arrested on 15.02.2020 and released on bail only on 03.03.2020. The petitioner subsequently filed Crl.O.P.(MD)No.12441 of 2020 for quashing the said criminal case. After elaborately hearing both sides, the prosecution initiated against the writ petitioner was quashed on the ground that there was no trace in the petitioner's mobile phone that such pictures ever were uploaded or even deleted.

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3.The petitioner however insists that records relating to his case should not be available in the public domain. This is because that would adversely affect his future career prospects. Through the learned senior counsel strongly contended that every individual has the right to be forgotten, I consciously refrain from venturing into consideration of the larger issue. This is because a learned Judge of this Court had already taken a view that the right to be forgotten cannot be invoked in matters relating to judicial records. However, on a case to case basis, relief can certainly be granted. In fact, in the counter affidavit filed by the learned Assistant Solicitor General, the following averments are found:-

"7.It is humbly submitted that, the Right to Privacy is a fundamental right recognized by the Hon'ble Supreme Court in the case of K.S.Puttaswamy v. Union of India (2017) 10 SCC 1. The international legal concept of "right to be forgotten" is evolving in India. The Indian courts also have accepted the doctrine of "right to be forgotten" on a case to case basis in the following cases:

a. Orissa High Court in Subhranshu Rout v. State of Odisha (BLAPL No.4592/2020, decided on 23^rd November, 2020).

b. Karnataka High Court in Vasunathan v. Register General 2017 SCC Online Kar 424.

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c. Jorawer Singh Mundy v Union of India 2021 SCC Online Del 2306 (Case is pending before the Hon'ble High Court of Delhi).

Recently on 18.07.2022 the Hon'ble Supreme Court in Miscellaneous Application No.875/2022 in SLP (Crl) No.3211/2022 - XXXX Vs. Kacherla Durga Prasad & Ors has passed in interim direction to the Court registry directing "to examine the issue and to work out how the name of both the petitioner and respondent No.1 along with address details can be masked so that they do not appear visible for any search engine" and had adjourned the case to three weeks.

4.Here is a case where the petitioner has been falsely and without any justification implicated. That is why, this Court came to his rescue by exercising its jurisdiction under Section 482 of the Criminal Procedure Code to secure the ends of justice. Due to advent of internet technology, a mere click of the writ petitioner's name would throw up past records and that would definitely injure his reputation. In these days, any prospective employer does conduct a due diligence search about a prospective employee's past. The employer may come to adverse conclusions regarding the petitioner even though he has been fully vindicated before this Court. Considering the special facts and circumstances of this case, I deem fit and appropriate to issue the following directions:-

5/10

"(1) The learned Additional Government Pleader appearing for the State Government categorically states before this Court that by order passed by the competent authority, the details pertaining to the writ petitioner have been totally blocked and that the petitioner's name will not even be seen in the public domain.

(2) The fifth respondent is directed to block the details regarding the petitioner in their records so that it is not seen in the public domain.

(3) The petitioner is permitted to send a representation to the Indian Kanoon along with a copy of this order and Indian Kanoon is directed to block the judgment dated 12.01.2022 made in Crl.O.P.(MD)No.12441 of 2020 from being accessed by using search engine such as Google, Yahoo etc.

(4) The impleaded respondents shall not furnish the details regarding the petition mentioned criminal case or the judgment arising out of the same to any third party.

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(5) The State Government authorities are directed to ensure that the details regarding the petition mentioned case are not available in CCTNS.

(6) The petitioner is also given further liberty to petition or move any authority concerned for enforcement of order passed by this Court and the said authority is obliged to comply with the same.

5.The writ petition is disposed of on these terms. No costs.

01.09.2022

Index : Yes / No Internet : Yes/ No ias

Note: Issue order copy on 05.09.2022. The name of the writ petitioner should be suppressed while issuing the order copy.

To:

1.The Secretory, Home Department,

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Fort St.George, Chennai - 600 009. 2.The Principal Secretary, Information Technology and Digital Services Department, Information Technology Department,

Secretariat, Chennai - 600 009.

3.The Superintendent of Police,

Virudhunagar District.

4.The Inspector of Police,

All Women Police Station,

Sivakasi,

Virudhunagar District.

5.The Secretary,

State Crimes Record Bureau,

Chennai.

8/10

9/10

G.R.SWAMINATHAN, J.

ias