Allahabad High Court
Mohammad Shoeb vs State Of U.P. on 17 August, 2023
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2023:AHC:166058 Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28523 of 2023 Applicant :- Mohammad Shoeb Opposite Party :- State of U.P. Counsel for Applicant :- Vijay Shankar Yadav,Nikhil Kumar Counsel for Opposite Party :- G.A. Hon'ble Mrs. Renu Agarwal,J.
1. Heard Mr. Vijay Shankar Yadav, learned counsel for the applicant, learned A.G.A. and perused the record.
2. The present first bail application has been filed on behalf of the applicant in Case Crime No. 84 of 2023 under Sections 419, 420, 467, 468, 471 and 120B I.P.C. under Sections 4, 20, 21 and 25 of the Indian Telegraph Act, 1885 and Section 66 and 66D of the Information Technology (Amendment) Act, 2006 Police Station Sector 126 Noida, District Gautam Buddha Nagar with the prayer to enlarge him on bail.
3. Learned counsel for the accused-applicant submitted that the applicant is innocent and has been falsely implicated in the instant case due to malafide intentions. It is submitted that the F.I.R. was lodged on the basis of recovery memo prepared by the police. Crux of the F.I.R. is that the applicant became instrumental in operating an illegal telephone exchange in SIFY Data Center, Sector 132 Noida converting international calls into local calls using VoIP (Voice Over Internet Protocol) technology and the said calls were used for hawala transaction, extortion, smuggling and spying. It is further alleged in the F.I.R. that some kidnapping was done in Panipat, Haryana in which phone call was made from the network of Durga Enterprises and the same was used to demand the ransom amount. It is submitted that the applicant is a Manager of Nextra Online Services which is responsible for providing Internet services and Web services. It is further submitted that Nextra Online Services has given sublet server space to Durga Enterprises from where the said illegal telephone exchange was operating and any offence, if committed, was committed by the said Durga Enterprise Company and not the Nextra Online Services. It is further submitted that the applicant has also provided the documentary evidence to the effect that the server space was sublet to Durga Enterprises by the Directors of the Nextra Online Services and the applicant has no role in subletting the server space to Durga Enterprises. It is further submitted that after the alleged kidnapping incident in Haryana, Hard Disk of the said system used in making VoIP calls was seized by the police and server of Durga Enterprise Company was closed and applicant has not played any role in providing any hard disk to any person to reopen the alleged illegal telephone exchange, however, applicant has been implicated only because he is the Manager of Nextra Online Services. It is further submitted that the allegation of accepting illegal gratification from Abhishek and allowing the Firm Durga Enterprises to run exchange is baseless and totally false as the decision to sublet the server space is taken by Directors of the Company and if any amount is paid by any tenant, the same is deposited in the account of the company and the said amount has no concern with the applicant. It is further submitted that in view of provision contained under Section 81 of the Information Technology (Amendment) Act, 2008 and law laid down by Hon'ble Apex Court in Sharat Babu Digumarti Vs. Govt. of NCT of Delhi [2017 (2) SCC-18] the Apex Court has held that " Once the special provisions having the overriding effect do cover a criminal act and the offencer, he gets out of the net of Indian Penal Code". It is contended that the said Judgment of Hon'ble Apex Court has been followed by the Hon'ble Bombay High Court in case of Gagan Harsh Sharma and Anr. Vs. State of Maharashtra through Senior Police Inspector and Anr. [(2019) Cri. L.J. 1398]. It is contended that the case is covered under Section 81 of the Information Technology Act and applicant cannot be implicated under Indian Penal Code as well as Indian Telegraphs Act. It is next contended that although the applicant has been charged with Sections of Indian Telegraph Act, 1885, in view of the provisions contained in Section 81 of the Information Technology Act, 1885, the offence under the Indian Telegraph Act, 1885 are bailable and non-cognizable. It is further submitted that the Information Technology Act, 2008 cannot be prima-facie established in absence of Forensic report and the certificate of the competent authority under Section 65 B of the Indian Evidence Act and in the present case, there is no Forensic report and certificate under Section 65 B of the Indian Evidence Act on record and as such no offence under the Information Technology Act, 2000 is made against the applicant. It is lastly contended that the applicant is languishing in jail since 18.05.2023 and if he is granted the liberty of bail he will not misuse the same and he is ready to furnish his sufficient sureties, bonds and personal bonds.
4. On the other hand, learned AGA for the State submitted that I.O. has recovered a mobile Oneplus-6, two I-Phones, 15 Card of HDFC Bank, 7 Card of Indusind Bank, 6 Card of American Express Bank, 3 Card of RBL Bank, 6 Card of Kotak Mahindra Bank, 3 Card of Axis Bank, 2 Card of ICICI Bank, 2 Card of SBI Bank, 1 card of IDFC First Bank, one pan card and Adhar Card from the possession of co-accused Ashutosh and one mobile phone Samsung Z-Plus 3 from the possession of co-accused Abhishek from the spot which have been seized by the I.O. for screening the data of the said mobile of accused applicants. It is submitted that the applicant has committed offence under the I.P.C., Indian Telegraphs Act and Information Technology Act. It is further submitted that applicant along with co-accused have established a forged and fabricated SIFY Data center in the name of Durga Enterprises by obtaining Adhar Card in the name of Rajveer and the facts of the present case are based on the I.T. Act, Indian Telegraph Act, as well as I.P.C. and the F.I.R. has been lodged on the basis of sufficient evidence against the accused applicant. It is further submitted that the I.O. has recovered networking chart through which the hardware device, internet and VoIP calls were being converted into local calls and the gateway of international calls was being by-passed with the motive that security agencies could not trace out such international and local calls. It is next contended that Nextra Online Services and Durga Enterprises were being operated by the accused-applicant and co-accused Ashutosh Bora and Abhishek Srivastava. The name of co-accused Ashutosh Bora came into the knowledge of the Panipat Police in a kidnapping case and the amount of ransom was demanded from Durga Enterprises. Panipat Police has recovered the hard disk of Durga Enterprises, thereafter, accused-applicant and co-accused have closed Durga Enterprises, later on, illegally they have installed a new exchange and continued the Telephone Exchange. It is further contended that Durga Enterprises is a part of Nextra Online Services and Ashutosh Bora is owner of the Durga Enterprises who has shown himself as Rajveer in the documents. It is further contended that the learned Sessions Judge has found that the present offence is serious offence and based on the Data collected by the I.O. which may be destroyed and evidence may be tapered by the accused-applicant. It is lastly contended that if the applicant is released on bail, he will certainly misuse the liberty of bail and he may abscond or tamper the prosecution evidence.
5. I have heard the rival submissions advanced on behalf of the parties and perused the record. It is considered apt to reproduce herein below Section 81 and 43 of the Information Technology Act, 2000:-
"81. Act to have overriding effect The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. [Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 (14 of 1957) or the Patents Act, 1970 (39 of 1970).] * * * * *
43. [Penalty and compensation] for damage to computer, computer system, etc. -If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network,-
(a) accesses or secures access to such computer, computer system or computer network [or computer resource];
(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network, [(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;] [(j) steal, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage;] [he shall be liable to pay damages by way of compensation to the person so affected]."
6. Section 66 of the Information Technology Act, 2000 provides that "If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both." Learned counsel for the applicant submitted that if the contents of the F.I.R. are found correct, then the case is punishable only with the imprisonment of three years.
7. The allegation against the present applicant is that Nextra Online Services sublet space of the server to Durga Enterprises Company owned by Ashutosh Bora. During the inquiry, it reveals that Durga Enterprises had two subsidiary companies, namely, Venture Tech Solutions and Empzilla India Pvt. Ltd. and established telephone exchange obtaining space from Nextra Online Services. It is alleged that Durga Enterprises is registered on the basis of fraud and fabricated documents and GST was also obtained on the basis of Adhar No. 85387354900. The said Adhar Number was fabricated in the names of three separate persons and applicant operated exchange obtaining SIP on the forged company. When the Nextra Online Services came to know about this fact, it terminated the services of Durga Enterprises but the present applicant along with co-accused Abhishek again put Hard Disk and started to operate the illegal Telephone Exchange. The said exchange was used for demand of ransom in a kidnapping case in Haryana. Heavy recovery is made from the possession of accused. Learned counsel relied upon the provision of Section 81 of the Information Technology Act which has overriding effect.
8. I have gone through the provisions of Section 43 of the Information Technology Act and the allegation levelled against the present applicant do not find place in Section 43 of the Information Technology Act, therefore, provisions of Information Technology Act has no overriding effect on the allegation made against the applicant as made in the F.I.R. So far as provisions of I.P.C. are concerned, role of applicant was instrumental in fabricating false documents for obtaining GST and SIP and the said system is used for committing crime which is covered under the I.P.C., hence, the application is not entitled to be released on bail at this stage.
9. Accordingly, instant bail application is rejected.
(Renu Agarwal,J.) Order Date :- 17.8.2023 Karan