Bombay High Court
Binod Sitaram Agarwal vs The State Of Maharashtra on 21 December, 2018
Author: Prakash D. Naik
Bench: Prakash D. Naik
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ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3027 OF 2018
Binod Sitaram Agarwal ....Applicant
Vs.
The State of Maharashtra ....Respondent
Mr. Aabad Ponda a/w Mr. Abhijit Desai & Mr. M. Amanullah I/b Ms.
Vrushali Maindad Advocate for the applicant
Mr. Benny Chatterjee, senior advocate I/b Ms. Priyanka V. Pandit
for intervener
Mrs. G. P. Mulekar APP for the State.
CORAM : PRAKASH D. NAIK, J.
DATED : 21st DECEMBER, 2018
P.C.
This is an application for bail under section 439 of Code of
Criminal Procedure, 1973. Applicant was arrested on 24/10/2018 in
connection with crime no. 93 of 2018 registered with M.I.D.C. Police
Station. Offences were registered under sections 43 & 66C of the
Information Technology Act 2000. Subsequently, section 70 of the
said Act was added and while filing the charge-sheet, section 408 of
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the Indian Penal Code was also invoked.
2 The case of the prosecution is that the complainant is the
Assistant Development Commissioner with M/s. Seepz, Sez, Special
Economic Zone, Central Road, M.I.D.C., Andheri, Mumbai.
Complaint was forwarded to the said police station on 08/09/2018.
The complainant was called by the police for inquiry in respect to
the said complaint and his statement was recorded on 11/09/2018
which is treated as F.I.R. It is stated that Seepz, Sez is a Central
Project having its office at Central Road, M.I.D.C, Andheri. The
undertaking provides financial assistance to Special Economic Zones
in Maharashtra, Dadra Nagar Haveli, Daman and Diu and Goa. The
Deputy Development Commissioner was provided email-id viz.
"[email protected]" which is used for discharging day to day
affairs of the undertaking. The said email-id is used by Deputy
Commissioner himself or any other person authorized by him. It is
further alleged that 4-5 months ago, the Deputy Development
Commissioner Shri Mahesh Yadav had informed Development
Commissioner that the aforesaid email-id is being misused by some
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unknown person. Hence directions were issued by the Development
Commissioner to make appropriate inquiry in that regard. It is
further stated that the said fact was brought to the notice of NIC
stating that the aforesaid email id is being misused by unknown
persons. It is stated that on scrutiny by NIC, it was noticed that
during 22/09/2017 to 24/07/2018, IP addresses of the Gio Infocom
Company mentioned in the F.I.R. were found to be suspicious and
therefore, report was submitted to Seepz on 13/08/2018 with a view
to submit the complaint to the concerned police station and hence,
the complaint was forwarded to M.I.D.C. Police Station. On the basis
of the said statement FIR was registered on 11/9/2018 for aforesaid
offences. It is further alleged that the applicant had hacked and
unauthorizedly assessed e-mail address of Deputy Development
Commissioner. No one is allowed unauthorizedly to open the email-
id. Applicant was arrested on 24/10/2018.
3 Applicant was produced before the competent court for
remand. Initially he was remanded to police custody and thereafter
remanded to Judicial custody. Although F.I.R. was initially
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registered for offence under section 43, 66C of the Information
Technology Act, subsequently, section 70 was applied.
4 Applicant preferred an application for bail before the court of
the learned Magistrate which was rejected on 01/11/2018.
Subsequently, applicant preferred an application befoe the Sessions
Court which was rejected on 14/11/018.
5 Mr. Ponda, the learned counsel for applicant submitted that
applicant has been falsely implicated in this case. Prosecution
lodged against the applicant is motivated. Applicant had made
complaints against corruption in the said office against concerned
persons and in retaliation, F.I.R. was registered against him. The
F.I.R. was registered against unknown persons and subsequently
applicant has been implicated in this case. In respect to the
complaints forwarded by the applicant, he was called for inquiry.
Reference was made to the letter issued by CVC dated 10/10/2018
in respect to the complaint of the applicant wherein he was asked to
attend the said office on 15/11/22018. It is submitted that
applicant has been dragged into this prosecution on account of
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complaints lodged by him. He had also filed a writ petition in the
High Court seeking appropriate reliefs in respect of the alleged
corrupt practices which is pending. It is further submitted that the
applicant has been detained in custody by invoking provisions which
are not tenable in law. The offence under section 43 and 66C of the
Information Technology Act are bailable in nature. It is submitted
that the punishment provided for section 66C is maximum
punishment of three years. The learned counsel for applicant drew
my attention to section 77 (b) which stipulates that the offences
punishable up to three years are bailable in nature. Thus, F.I.R. was
registered for offences which are bailable in nature. It is submitted
that subsequently section 70 was invoked with a view to apply
provisions of non-bailable offence. The learned counsel submitted
that section 70 relates to protected system and sub clause 3 of the
said provision provides for punishment for imprisonment with either
description for a term which may extend to 10 years and fine. It is
submitted that to attract provisions of section 70, there is
requirement of notification published in Official Gazette declaring
system as protected system and in the absence of such notification,
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said provisions cannot be applied. It is submitted that admittedly in
the charge-sheet which is filed against the applicant, there is no
such notification. The learned counsel also pointed out Rule 2(k) of
Information Technology (Information Security Practices and
Procedures for Protected System) Rules, 2018 and drew my attention
which defines protected system. It is submitted that in the light of
definition of the protected system, notification is required qua the
concerned system which is required to be declared as protected
system and there is no such notification in respect to the system
which is subject matter of the present case. It is further submitted
that section 408 of the Indian Penal Code was invoked belatedly at
the time of filing of charge-sheet which also shows malafide on the
part of investigating machinery. Although, F.I.R. was lodged on
11/09/2018, provisions of section 408 of the Indian Penal Code
were applied only at the time of filing the charge-sheet. It is
submitted that the said provision has been applied mechanically
without there being any offence or case made out by the prosecution
to satisfy requirements of section 408 of the Indian Penal Code.
There is no dominion or entrustment which are pre-requisites to
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constitute the said offence. He further submitted that while
investigation had proceeded for offence under the IT Act, invoking
provisions of Indian Penal Code was not warranted and not
permissible in law. The learned counsel relied upon the decision of
this Court in Writ Petition No. 4361 of 2018 wherein it is observed
that if the special enactment in form of Information Technology Act
contains special mechanism to deal with the offences falling within
the purview of Information Technology Act, then, the invocation and
application of provisions of IUPC being made applicable to the same
set of facts is uncalled for. The Court while analyzing the provisions
of law and the principles of double jeopardy, set aside the invocation
of the penal provisions. The learned counsel further submitted that
there has to be specific notification qua subject system in the light of
the section 70 of the IT Act. He pointed out notifications wherein
certain systems were declared as protected system and therefore
submitted that in the present case also, there was necessity of such
notification which does not exist and therefore section 70 would not
be attracted. Other offences are bailable in nature. Applicant is in
custody from the date of arrest. Investigation is completed and
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charge-sheet has been filed.
6 The learned APP submitted that the applicant is involved in
committing act of hacking the email id and theft of data which was
sensitive in nature. It is further submitted that although, F.I.R. was
lodged against unknown persons, subsequently, involvement of the
applicant came to light and it was found that applicant is involved in
the said crime. Learned APP further submitted that applicant was
appointed by contract dated 20/01/2017 as IT professional. The
said contract was for a period of 12 months. Clause 6 of the said
contract states that the appointee shall undertake not to divulge the
confidential information viz. not to use or permit or enable any
person to use any of the confidential information in any manner, not
to disclose or divulge any confidential information to any person
unauthorized by the authority and shall limit access to the
confidential information to only such personnel authorised by the
competent authority. It is further submitted that the said contract
also mentions that the obligations under the aforesaid clause to the
extent provided shall continue to apply even after termination or
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expiry of this Contract. It is submitted that the applicant was
engaged on the basis of the said contract and by taking undue
advantage of the situation, had committed the acct as stated above.
The applicant has assessed sensitive information. If the applicant is
released on bail, there is likelihood that he may tamper with the
evidence.
7 The learned senior counsel Mr.Chatterjee appearing for the
intervener/first informant opposed the application for bail. It is
submitted that Seepz is a Government of India undertaking. There
was sensitive and confidential information which was retrieved by
the accused. The opinion of the expert is still awaited and it is not
clear what was the nature of data of which theft is committed by the
accused. It is further submitted that the applicant used the email-id
which amounts to breach of trust and therefore, provisions of
section 408 of the Indian Penal Code in this case. It is further
submitted that every information of the Seepz-Sez undertaking is
confidential and it is presumed to be protected. Reliance was placed
on notification dated 18/02/2015 issued by Ministry of
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Communication and Information Technology (Department of
Electronics and Information Technology) and the learned senior
counsel pointed out clause 2.1 of the said notification wherein it is
stated that only email services provided by NIC, the implementing
Agency of the Government of India shall be used for official
communications by all organizations except those exempted under
Clause 14 of this policy. Email service is provided by other service
providers shall not be used for any official communication. It is thus
submitted that all the emails of NIC are protected and this can be
considered as notification within the requirement of section 70 of the
Information Technology Act.
8 The learned senior counsel drew my attention to section 8 of
the Right to Information Act, 2005 which refers to exemption from
disclosure of information. It is submitted that requested information
was confidential and the provisions of section 70 are clearly
applicable in this case. He also relied upon the contract of
appointment of the applicant which puts conditions upon him. It is
therefore submitted that the applicant is involved in a serious
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offence and bail may not be granted.
9 Heard both sides. I have also perused the F.I.R. as well as
documents tendered by both sides. F.I.R. was lodged against
unknown persons on 11/09/2018 while lodging F.I.R., section 43 &
66C of the Information Technology Act were invoked. Section 43
relates to penalty and compensation, damage to computer, computer
system etc. Provision stipulates the nature of prohibited acts and
further mentions that whoever contravenes the provisions is liable to
pay damages by way of compensation to the person so affected.
Section 66C provides for punishment for identity theft. It
contemplates that whoever fraudulently or dishonestly make use of
the electronic signature, password or any other unique identification
feature of any other person, shall be punished with imprisonment of
either description for a term which may extend to three years and
shall also be liable to fine which may extend to one lakh.
10 It would be relevant to consider section 77B of the IT Act which
stipulates that the offence punishable with imprisonment of three
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years and above shall be cognizable and offence punishable with
imprisonment of three years shall be bailable. In the light of the
aforesaid, it is apparent that the offences invoked in F.I.R. were
bailable in nature. Section 70 was invoked during the course of
investigation. Applicant was arrested on 24/10/2018. It would be
relevant to refer to section 70 of the IT Act. The provisions relates to
protected system which reads as follows:
"70 Protected system. - [(1) The appropriate
Government may, by notification in the Official Gazette,
declare any computer resource which directly or
indirectly affects the facility of Critical Information
Infrastructure, to be a protected system. Explanation.
-For the purposes of this section, "Critical Information
Infrastructure" means the computer resource, the
incapacitation or destruction of which, shall have
debilitating impact on national security, economy, public
health or safety.]
(2) The appropriate Government may, by order in
writing, authorise the persons who are authorised to
access protected systems notified under sub-section (1).
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(3) Any person who secures access or attempts to secure
access to a protected system in contravention of the
provisions of this section shall be punished with
imprisonment of either description for a term which may
extend to ten years and shall also be liable to fine.
(4) The Central Government shall prescribe the
information security practices and procedures for such
protected system.
11 Prima facie On plain reading of the said provision, it appears
that invocation requires determining particular system as protected
system. The aforesaid provision can be read in consonance with Rule
2 (K) of Information Technology (Information Security Practices and
Procedures for Protected System) Rules, 2018 which defines
"Protected System" means any computer, computer system or
computer network of any organisation as notified under section 70
of the Act, in the official gazette by appropriate Government. The
charge-sheet does not contain any such notification. The learned
counsel for the informant, however submitted that the notification
relied by him suffice the requirement of notification contemplated
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under section 70. Mr. Ponda had also placed for consideration the
notification dated 26/07/2010 wherein the system which is the
subject matter of the said notification was declared to be a protected
system for the purpose of Information Technology Act. Prosecution
invoked section 408 of the Indian Penal Code while filing the charge-
sheet, although the said provision was not invoked at the time of
registration of the F.I.R. or at the time when the applicant was
arrested or also during the course of investigation. Charge-sheet was
filed on 17/12/2018.
12 Learned APP submitted that the facts of the case before the
Division Bench were distinct in nature and the said decision is not
applicable in this case. This Court is dealing with the application for
bail and this is not the stage to give any finding with regards to
merits of the case. However, prima facie, it is apparent that to satisfy
requirement of section 70 of the IT Act, there was no notification.
Whether the provisions of section 408 are applicable or not will be
decided at the appropriate stage. However, in the factual matrix of
the case, it is noted that the applicant is in custody from
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24/10/2018. F.I.R. proceeded with registration of offences under
sections 43 and 66 of the I.T. Act. subsequently, offence under
section 70 was invoked and at the time of filing of charge-sheet,
section 408 of the Indian Penal Code has been invoked. Charge-
sheet is already filed. Further custody of the applicant is not
necessary. Taking into consideration of the aforesaid facts and
circumstances, case for bail is made out. Hence, I pass following
order:
ORDER
(I) Criminal Bail Application No. 3027 of 2018 is allowed. (II) Applicant is directed to be released on bail in crime no. 93 of 2018 registered with M.I.D.C. Police Station on furnishing P. R. bond in the sum of Rs. 50,000/- with one or more sureties in the like amount.
(III) Applicant shall report to M.I.D.C. Police Station, Andheri once in a month on first Saturday between 11.00 am to 01.00 p.m. till further orders.
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16 906.3027.18 ba.doc (IV) Applicant shall not tamper with the evidence and shall attend the Trial Court on the date of hearing of the case regularly, unless exempted by the Court. (V) Applicant is permitted to furnish cash security in the sum of Rs. 50,000/- for a period of 6 weeks. (VI) The observations made in this order are prima facie and the trial Court shall deal with the case in accordance with law. 13 Application stands disposed of.
[PRAKASH D. NAIK, J.] ::: Uploaded on - 24/12/2018 ::: Downloaded on - 25/12/2018 23:04:27 :::