Gauhati High Court
Kamana Dev Barma vs The State Of Assam And Ors on 26 May, 2025
Page No.# 1/11
GAHC010018122025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/382/2025
KAMANA DEV BARMA
W/O- ASWINI KUMAR BARMAN, SUBJECT TEACHER , GOPAL BORO GOVT.
H.S SCHOOL, DISPUR, GUWAHATI-06, KAMRUP (M), ASSAM. A
PERMANENT RESIDENT OF 8TH MILE, GARO BASTI, KHANAPARA,
GUWAHATI-22, DIST- KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, HOME DEPARTMENT, DISPUR, ASSAM, PIN-
781006.
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI
KAMRUP(METRO)
ASSAM
PIN- 781007.
3:THE RESERVE BANK OF INDIA
REPRESENTED BY ITS REGIONAL DIRECTOR
PANBAZAR
GUWAHATI-1
STATION ROAD
KAMRUP(M)
ASSAM
4:THE STATE BANK OF INDIA
REP. BY ITS CHAIRMAN
STATE BANK BHAVAN
Page No.# 2/11
CORPORATE CENTRE
MADAME CAMA MARG
MUMBAI
MAHARASHTRA-400021
5:THE CHIEF MANAGER
THE STATE BANK OF INDIA
DISPUR BRANCH
DISPUR
GUWAHATI-06
BRANCH CODE 003030
6:THE OFFICER IN CHARGE
DISPUR POLICE STATION
DISPUR
GUWAHATI-0
Advocate for the Petitioner : MR SEUJ BIKASH,
Advocate for the Respondent : , MR K DAS (r-4,5),MR. S Ali (r-4,5)
Linked Case : WP(C)/6523/2023
KAMANA DEV BARMA
W/O- ASWINI KUMAR BARMAN
SUBJECT TEACHER
GOPAL BORO GOVT. H.S SCHOOL
DISPUR
GUWAHATI-06
KAMRUP (M)
ASSAM.
A PERMANENT RESIDENT OF 8TH MILE
GARO BASTI
KHANAPARA
GUWAHATI-22
DIST- KAMRUP (M)
ASSAM
VERSUS
Page No.# 3/11
THE STATE OF ASSAM AND 5 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
ASSAM
PIN- 781006.
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI
KAMRUP(METRO)
ASSAM
PIN- 781007.
3:THE RESERVE BANK OF INDIA
REPRESENTED BY ITS REGIONAL DIRECTOR
PANBAZAR
GUWAHATI-1
STATION ROAD
KAMRUP(M)
ASSAM
4:THE STATE BANK OF INDIA
REP. BY ITS CHAIRMAN
STATE BANK BHAVAN
CORPORATE CENTRE
MADAME CAMA MARG
MUMBAI
MAHARASHTRA-400021
5:THE CHIEF MANAGER
THE STATE BANK OF INDIA
DISPUR BRANCH
DISPUR
GUWAHATI-06
BRANCH CODE 003030
6:THE OFFICER IN CHARGE
DISPUR POLICE STATION
DISPUR
GUWAHATI-06
------------
Advocate for : MR. S BIKASH
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 5 ORS.
Page No.# 4/11
BEFORE
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
26.05.2025 Heard Mr. S Bikash, learned counsel appearing for the applicant. Also heard, Mr. K Das, learned counsel appearing for respondent Nos. 4 and 5, Mr. P Hazarika, learned counsel appearing for respondent Nos. 3 and Mr. J Handique, learned counsel appearing for respondent Nos. 1, 2 and 6.
2. By way of this Amendment Application, the application is seeking amendment of the Writ Petition i.e. WP (C) No. 6523 of 2023.
3. The brief facts of the case is that, while filing the said Writ Petition, the petitioner holds a Savings Bank account, vide Account No. 33082806872, at the Dispur Branch of the State Bank of India. In the Month of July 2022, she discovered unauthorized transactions from her account between 04.06.2022 and 20.06.2022, resulting in a loss of Rs. 3,71,295/(Rupees Three Lakh, Seventy One Thousand, Two Hundred & Ninety-Five), only. She did not receive any SMS alerts for these illegal transactions from the Bank-Authorities. On discovery of the theft, the petitioner reported the incident to the police, leading to the registration of a Police Case vide Dispur P.S. Case No. 1756/2022, under Section 420 of the Indian Penal Code on 27.07.2022. The petitioner also submitted an application to the concerned Bank Manager, requesting reimbursement of the stolen amount. However, the Bank's Internal Ombudsman rejected her claim without providing any reason. Consequently, the petitioner filed the Writ Petition seeking the restoration of the stolen amount to her bank account, given the bank's failure to safeguard her deposited funds. Additionally, the petitioner prayed for a fresh investigation into the police case registered on her complaint to be conducted by a competent authority.
4. It is the specific case of the application that while filing the writ petition, inadvertently the Bharati Airtel Limited i.e, the telecommunication service provider that issued the petitioner's pre-paid SIM Card bearing mobile number 8811882814, though is a necessary party, was not arrayed as a party respondent in the Writ Petition. It is the further case of the applicant that certain vital information which has an important bearing in the Writ Petition could not be pleaded as the documents in connection to the information was received subsequently. Accordingly, the present Amendment Application has been filed.
5. Mr. S Bikash, learned counsel for the applicant submits that since the document have been subsequently received, the same could not be made part of the writ petition. He however, submits that since the document has an important bearing for the effective adjudication of the list in hand, it is necessitated that the amendment sought for be allowed.
6. Mr. K Das, learned counsel appearing for respondent Nos. 4 and 5, Mr. P Hazarika, learned counsel appearing for respondent Nos. 3 and Mr. J Handique, learned counsel appearing for respondent Nos. 1, 2 and 6 fairly submits before this Court that they have not received any instructions to oppose Page No.# 5/11 the prayer of amendment.
7. I have heard the submissions of the learned counsels appearing for the parties and I have perused the materials available on record.
8. It appears that subsequent to filing the WP(C) No. 6523 of 2023, certain new development has occurred:
1) the petitioner has obtained certified copies of the Police's Final Report in Dispur P.S. Case No. 1756/2022, and;
2) the petitioner has also obtained the certified copy of the Order dated 01.08.2024 passed by the Special Judicial Magistrate, Assam, Gauhati.
9. A perusal of the aforesaid certificates, it appears that the Final Report submitted in this Dispur Case No. 1756/2022 was set aside by the Magistrate Court. That apart, the petitioner due to an inadvertent error did not add Bharati Airtel Limited as a party respondent in the Writ Petition. It appears that Bharati Airtel Limited is the telecommunication service provider which issued the petitioner's pre-paid SIM Card. Relevant paragraphs of the Amendment Application is reproduced here under for ready reference:
"3. That, it is respectfully stated that, regrettably, an inadvertent error occurred while filing the Writ Petition. The petitioner's advocate inadvertently omitted to include the Bharti Airtel Limited, i.e., the telecommunication service provider that issued the petitioner's pre-paid SIM Card bearing mobile number 8811882814, as a party/respondent in the Writ Petition. Furthermore, it is hereby brought to the notice of this Hon'ble Court that: the Writ Petition inadvertently failed to mention a crucial fact that the aforementioned SIM Card used by the petitioner is registered in the name of the petitioner's husband, Shri Aswini Kumar Barman. The petitioner has been using the SIM Card with her husband's consent, and the SIM Card has always remained in her possession.
It is respectfully stated that to determine whether the petitioner received SMS alerts on her mobile phone containing the aforementioned SIM Card, it is essential to obtain information from Bharti Airtel Limited, the Telecommunication Company, which issued the SIM Card registered in her husband's name. Furthermore, it is submitted that a thorough police investigation involving the Bharti Airtel Ltd. would reveal whether the petitioner was a victim Page No.# 6/11 of SIM swapping or SIM cloning by miscreants. To rectify the aforementioned mistakes oversights, the petitioner now seeks to amend the writ petition to include the concerned authorities of the 'Bharti Airtel', the telecommunications company, as respondents in the W.P.(C) No. 6523/2023.
4. That, further, it is stated that: subsequent to filing the W.P.(C) No.
-523/2023, several new developments have occurred. The petitioner has obtained certified copies of the police's Final Report in Dispur P.S. Case No. 7256/2022 and one Order dated: 01.08.2024 passed by the Special Judicial Magistrate, Assam, Guwahati, which set aside the said Final Report submitted by the police. By amending the Writ Petition, the petitioner also wishes to update the case record with these new circumstances and documents. A detailed account of the changing circumstances and developments is provided in the following paragraphs 5 & 6 of this Application.
5. That, the petitioner respectfully states that: in the paragraph 10 of the writ petition, the petitioner mentions that during her visit to the Dispur Police Station, she discovered that the police had prepared a Final Report in connection Dispur P.S. Case No. 1756/2022 without conducting a proper investigation. Although she was initially unable to obtain a certified copy of the said final report at the time of filing of the instant writ petition, her advocate later found that the Final Report was lying in the concerned office of the CJM Court Complex, Kamrup (M), at Guwahati. After personal efforts, the petitioner managed to have the report presented to the Special Judicial Magistrate, Assam, Guwahati on 28.03.2024, and thereafter, on 01.08.2024, she submitted a Protest Petition against the aforesaid Final Report submitted by the Police in connection with Dispur P.S. Case No. 1756/2022. In her Protest Petition dated: 01/08/2024, the petitioner challenged the Final Report presented by the police before the aforesaid court on the following grounds:
(i) Firstly, the Investigating Officer (I.0.) of the Case stated in the report that he had contacted the Branch Manager of the concerned bank (SBI, Dispur Branch) Page No.# 7/11 and sent a requisition for account details of the petitioner's bank account, but claimed not to have received any information from the bank. However, it appears that the I.0. did not take any further steps to obtain the required information or to identify the culprits involved in the offense.
(ii) Secondly, the I.0. overlooked the account statements of the petitioner's bank account, which were submitted along with the complaint. These statements revealed fraudulent UPI transactions, which the petitioner had brought to the I.O.'s attention during the investigation. Nevertheless, the I.O. failed to investigate these transactions, including the payment/transaction reference numbers, and did not attempt to identify the beneficiaries who received the petitioner's stolen money in their bank- accounts. Consequently, the I.O.
submitted a hasty closure report without conducting a thorough investigation into the fraudulent transactions.
Further on perusal of the aforesaid Final Report it can be found that: during the investigation of the case, the I.O. contacted the Branch Manager of State Bank of India's Dispur Branch, requesting certain information related to the petitioner's bank account. However, the I.O. received no response from the bank. This particular omission raises legitimate concerns that the bank authorities may have intentionally withheld the requested information, possibly to conceal their own negligence in the theft of the petitioner's funds. Neither the Branch Manager (Respondent No. 5) furnished the requisite documents to the Investigating Officer (I.0.) nor did the I.O. pursue the matter further to obtain them. As a result, both authorities neglected their duties, enabling the perpetrators who stole the petitioner's money to remain at large.
6. That, after considering the Protest Petition filed by the petitioner in connection with the aforementioned police the Special Judicial Magistrate, Assam, Guwahati, by order dated 01.08.2024, rejected aforesaid the Final Report submitted by the police. The Special Judicial Magistrate directed the Officer-in- Charge (O.C.) of Dispur Police Station to conduct further investigation in the Page No.# 8/11 case. The O.C. was instructed to entrust the investigation to an Investigating Officer (I.O.) with technical expertise in cyber-crime cases. Alternatively, the O.C. was directed to consider transferring the case to another police station with technical expertise and exclusive jurisdiction over cyber-related offenses. Following the court's direction, the case was sent back to the Dispur Police Station, but no progress has been made by the police in investigating the case. Furthermore, the police have not informed the petitioner whether the case has been transferred to another branch or police station with expertise in handling cyber-crime cases."
11. Reading of the aforesaid averments, it appears that in order to effectively adjudicate the Writ Petition, the aforesaid proposed amendments are essential and necessary. That being so, the amendment as sought for is allowed. Accordingly, it is provided that;
(i) In the cause title of the case at Page No. 4 of the Writ Petition, after the words:
"6.The Officer in Charge, Dispur Police Station, Dispur, Guwahati- 781006,"
The following shall be added:
"7. Bharti Airtel Ltd., represented by its Chief Executive Officer, Bharti Crescent 1 Nelson Mandela Road, Vasant Kunj, Phase II, New Delhi-110070.
8. Bharti Airtel Ltd., Assam and North East States Circle Office, represented by its Circle Head, Bharti House, Six Mile, Khanapara, G.S. Road, Guwahati -781022."
(ii) In the paragraph 3 at Page No. 6 of the Writ Petition, after the sentence:
"But, no SMS alert generated by the computer system of the bank was received in her mobile number (8811882814) linked with the aforesaid bank account against any of the aforesaid fraudulent online transactions.,"
The following new sentences shall be added:
Page No.# 9/11 "It is pertinent to mention that the SIM Card bearing the mobile number 8811882814, which was in use by the petitioner during the aforesaid relevant period, is registered in the name of her husband, Shri Aswini Kumar Barman. Nonetheless, the petitioner has been the sole user of the said mobile number, utilizing the SIM Card with her husband's explicit consent. "
(iii) After the paragraph no. 9 and before the paragraph no. 10 at Page No. 13 of the Writ Petition, the following new Paragraph No. 9 A shall be added:
"9A. That the petitioner states that: there is a probability that the petitioner may have been targeted by a SIM swapping or SIM cloning attack, a type of identity theft that exploits vulnerabilities in mobile network security. A thorough investigation involving Bharti Airtel Ltd. if directed may uncover whether the petitioner was indeed a victim of SIM swapping or SIM cloning by malicious - individuals. The concerned authorities of Bharti Airtel Ltd. are being made parties to this writ petition. Bharti Airtel Ltd. can provide this Hon'ble Court as well as the police authorities with crucial information regarding: whether the petitioner received timely SMS alerts from the banks concerning the fraudulent UPI transaction on her mobile phone containing the aforementioned SIM Card. Specifically, Bharti Airtel Ltd. can confirm the exact date and time if the petitioner received these SMS alerts in her mobile phone containing the aforesaid SIM Card. To ascertain this information, it is essential to obtain records from Bharti Airtel Ltd., the telecommunication company that issued the SIM Card used by the petitioner at the relevant point of time. While the petitioner does not seek any relief from the respondents 7 & 8, those concerned authorities of the Bharti Airtel Ltd. may provide necessary facts from their system records, shedding light on the matter by filing an affidavit."
(iv) After paragraph no. 10 and before the paragraph no. 11 at Page No. 14 of the Writ Petition, the following new Paragraph No. 10 A shall be added:
"That, the petitioner states that, the Final Report prepared by the police in connection with Dispur P.S. Case No. 1756/2022 was presented to the Court of Special Judicial Magistrate, Assam, Guwahati vide Final Report No. 921/23 dated: 28/05/2023. Subsequently, on 01.08.2024, the petitioner filed a protest petition before the said Hon'ble court challenging the aforesaid Final Report mainly on two grounds:
(i) Firstly, the Investigating Officer (1.0.) stated in the report that he had contacted the Branch Manager of the concerned bank (SBI, Dispur Branch) and sent a requisition for details related to the Page No.# 10/11 petitioner's bank account, but claimed not to have received any information from the bank. However, it appears that the I.O. did not take any further steps to obtain the required information or to identify the culprits involved in the offense.
(ii) Secondly, the I.O. overlooked the account statements of the petitioner's bank account, which were submitted along with the complaint. These statements revealed fraudulent UPI transactions, which the petitioner had brought to the I.O.'s attention during the investigation. Nevertheless, the I.O. failed to investigate these transactions, including the payment/transaction reference numbers, and he did not attempt to identify the beneficiaries who received the petitioner's stolen money. Consequently, the 1.0. submitted a hasty closure report without conducting a thorough investigation into the fraudulent transactions..
After considering the protest petition filed by the petitioner in connection with the aforementioned police case, the Special Judicial Magistrate, Assam, Guwahati, by order dated 01.08.2024, rejected the Final Report submitted by the I.O. of the case. The Magistrate directed the Officer-in-Charge (O.C.) of Dispur Police Station to conduct further investigation in the case. The concerned O.C. was instructed by the aforesaid court to entrust the investigation to an Investigating Officer (I.O.) with technical expertise in cybercrime cases. Alternatively, the O.C. was directed to consider transferring the case to another police station with technical expertise and exclusive jurisdiction over cyber-related offenses. Following the court's direction, the case was sent back to the Dispur Police Station, but the petitioner remains unaware of the progress made by the police in investigating the case. It is evident throughout this entire episode that the police authorities acted negligently, failing to conduct a proper inquiry into the complaint filed by the petitioner, which suggests a disturbing indifference on the part of the police authorities towards ordinary citizens.
It is also noteworthy that the petitioner has observed a further troubling fact upon examining the Final Report submitted by the Investigating Officer. As per the statements made by the I.O. in the Final report, during the investigation of the case, the 1.0. contacted the Branch Manager of State Bank of India's Dispur Branch (respondent no.5), requesting certain information related to the petitioner's bank account. However, the I.O. received no response from the bank. This particular omission of the Bank raises legitimate concerns that the bank authorities may have intentionally withheld the requested documents, possibly to conceal their own negligence in the theft of the petitioner's funds. Neither the Branch Manager (respondent no. 5) furnished the requisite documents to the Investigating Officer (I.O:) to support the investigation of the case, nor did the I.O. pursue the matter further to obtain them. As a result, both authorities neglected their duties, enabling the perpetrators who stole the petitioner's money to remain at large."
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12. Ordered accordingly.
13. Let a copy of the amendment petition be submitted before the Registry for doing the needful.
14. The Interlocutory Application stands allowed and disposed of.
JUDGE Comparing Assistant