Andhra Pradesh High Court - Amravati
Bongu Murali vs The State Of Andhra Pradesh on 21 August, 2024
APHC010313162024
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
WEDNESDAY, THE TWENTY FIRST DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
CRIMINAL PETITION NO: 4997/2024
Between:
Bongu Murali ...PETITIONER/ACCUSED
AND
The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT
Counsel for the Petitioner/accused:
1. R SIVA SAI SWARUP
Counsel for the Respondent/complainant:
1. PUBLIC PROSECUTOR
The Court made the following:
2
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL PETITION No.4997 of 2024
ORDER:
This Criminal Petition, under Sections 437 and 439 of Cr.P.C. (New Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023), is filed by the petitioner/A.1 seeking regular bail in Crime No.118 of 2024 of Cyber Crime Police Station, Visakhapatnam City, registered for the offences punishable under Sections 370, 365, 374, 384 and 344 read with 120B I.P.C. and Sections 66-C, 66-D and 66-F of Information Technology Act, 2000.
2. Heard Sri R.Siva Sai Swarup, the learned counsel for petitioner and the learned Public Prosecutor for respondent-State.
3. Perused the record.
4. The following points are urged in the bail petition:
• The petitioner is totally innocent, and the crime is registered without any material and there is no evidence prima facie supporting the accusation against the petitioner. 3 • The allegation made in the written information of the de facto complainant is totally false and is created only for the purpose of registering this case. The petitioner and the de facto complainant are known to each other and they all hail from Srikakulam District. Suppressing the fact that the brother of de facto complainant worked abroad, false information was lodged against the petitioner and others. • The confession allegedly recorded by the police is not valid in the eyes of the law.
• The petitioner is permanent resident of Prasad Gardens at Visakhapatnam and is willing to cooperate with the investigation agency and is obliged to comply with any of the conditions that may be imposed in the event of release on bail.
5. Learned counsel for petitioner initially argued that the investigation agency failed to comply with the procedure provided under the Information Technology Act, 2000 (for short, 'the Act, 2000') since the said enactment mandates investigation of a case by an officer of the rank of Deputy Superintendent of Police but the present case was investigated into by an Inspector of Police 4 and therefore, the registration of crime is invalid and further investigation is invalid. However, the learned counsel during further hearing of the bail petition, after noticing the correct principles of law, admits that by virtue of Act 10 of 2009 which is the Information Technology (Amendment) Act, 2008 the principal Act, namely, the Information Technology Act, 2000 was amended and at present as per Section 78 of the Act, 2000 a police officer not below the rank of Inspector is competent to investigate any offence under the Act, 2000. By making such submissions the learned counsel does not dispute the competence of the investigation agency in registering the crime which is investigated by Inspector of Police.
6. Learned counsel for petitioner submits that the petitioner was arrested and was remanded to judicial custody on 02.06.2024 and the petitioner's bail application in Crl.M.P.No.1600 of 2024 was dismissed by learned VII Additional District and Sessions Judge, Visakhapatnam on 16.07.2024.
7. Learned counsel for petitioner argued that bail is the rule and jail is an exception and that is settled law. In support of it, the 5 learned counsel cited Jalaluddin Khan v. Union of India1. That was a case where their Lordships were pleased to lay down the above stated principle. In that case the investigation was over and charge sheet was filed. The accused was arrested on 12.07.2022 and was enlarged on bail by the orders of their Lordships dated 13.08.2024. Their Lordships stated that once the case is made out for grant of bail the Court cannot decline to grant the bail.
8. Learned counsel also cited Aluka Sandra Orewa @ Benny v. State of Karnataka2. That was a case of regular bail where the offences alleged in the charge sheet were under Sections 66-C and 66-D of the Act, 2000. Though initially Section 420 I.P.C. was registered, after due investigation, the said provision was omitted. The provisions for which the charge sheet was filed were found to be bailable offences. It was in the context of the nature of such offences being bailable, one point that fell for consideration before the said Court was that the said accused was found involved in multiple number of cases and in such an event, whether the Court was entitled to refuse the bail in a 1 2024 SCC OnLine SC 1945 2 2021 1 Crimes(HC) 226 6 bailable offence. After noticing the precedent, the learned Judge held that in such an event bail cannot be claimed as a matter of right even in bailable offences. However, considering the fact that the accused therein was a woman, and the investigation was over and bail was obtained by her in other crimes, the prayer for bail was granted. However, at paragraph No.7 the learned Judge, on consideration of facts, recorded a clear observation that the facts would attract Section 468 I.P.C. which is non- bailable though charge sheet did not indicate the said penal provision.
9. In the case at hand, one of the provisions alleged against the accused is under Section 66-F of the Act, 2000. This provision provides punishment for cyber terrorism and the punishment provided may extend to imprisonment for life. According to learned counsel for petitioner, in the case at hand, all the facts alleged by the prosecution do not indicate involvement of this petitioner/A.1 in any acts of cyber terrorism and therefore, it is an excess charge on part of the prosecution. It is in this regard, the learned counsel cited K.Divya @ 7 Divyabharathi v. The Inspector of Police3. That was a case where the accused produced a documentary film for the purpose of abolition of manual scavenging. On an information lodged by an advocate police registered F.I.R. for the offences under Sections 153(A) and 505(1)(b) I.P.C. and Section 66-F of the Act, 2000. The accused filed a petition under Section 482 Cr.P.C. seeking quashment of the F.I.R. On analysis of facts, the learned Judge found that the acts attributed against the accused do not amount to any offence and accordingly, quashed the F.I.R. In the process of reasoning, at paragraph No.12, the learned Judge explained Section 66-F of the Act, 2000 and held that to attract such provision the acts alleged against the accused must show that they cause threat to the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people.
10. It is in the context of the above submissions of the learned counsel, now the allegations made against the petitioner by the prosecution are to be seen.
3 AIRONLINE 2019 MAD 1535 8
11. The story of prosecution discloses the agony of people in multitude. According to prosecution, this is a case of human trafficking coupled with cheating, extortion and wrongful confinement compelling various innocent persons to join in jobs where the alleged employers were indulging in cyber crimes and people were forced to do these works and for this purpose, they were confined in dark rooms and were starved, and their travel documents were also taken away. There is criminal conspiracy and involvement of various fraudsters and the victims were sent from India to Cambodia. So far six accused are stated to be part of this network, and the present petitioner is shown as accused No.1 while the other accused are still at large and not available for being arrested by the investigating agency.
12. According to prosecution, this petitioner runs Bhavana Fabricators and Engineering Works at Poorna Market, Visakhapatnam. At that place he also runs a consultancy in man power. Those who intend to work and earn abroad approach him. Over a period, this accused has been sending various persons to Cambodia on the ground that they would be employed there as Data Entry Operators and such other works. Scores of people were so sent by him and some of them have been still 9 there in Cambodia and some of them returned to India. The investigation agency recorded the statements of some of these persons which disclosed that they approached this accused for obtaining jobs and he promised that they would be given jobs and they were sent to Cambodia. The point to be noticed is that in many cases he sent these people on Tourist Visas saying that necessary relevant Visas would be provided to them at Cambodia which never materialized really. In some instances, he sent them to Cambodia on Business Visas telling them that they would get appropriate Visas in Cambodia. From these persons he collected various amounts towards his fees. Allegations further show that on some occasions he accompanied with these people and took them to Cambodia and handed them over to the agents there. Prosecution alleges that at Cambodia those alleged employers kept these people in dark rooms, starved them and compelled them to do acts of crime. Some of those persons who happened to come back to India met this accused told him their struggles and asked him to return their money and he refused to give back their money. It has to be noticed that even after he gained knowledge of the travails of those persons who came back and met him he continued his acts of sending people abroad on 10 Tourist Visas promising that they would be employed in Cambodia.
13. The above allegations would show that the petitioner/A.1 recruits people and transports them to other countries and he does it by practicing deception that they are sent there for employment. Petitioner sent them on Tourist Visas which are not work visas. Thus, the allegations prima facie disclosed the act of deception. All this activity amounts to trafficking of persons and thus, a prima facie case is seen for the offence under Section 370 I.P.C. The allegations made by the prosecution, as seen from the record, do not show any complicity on the part of this accused to bring his alleged conduct within the parameters of cyber terrorism mentioned in Section 66-F of the Act, 2000. Be it noted, the investigation is still in progress.
14. In the context of the above narration of prosecution story, when this Court considering the grounds urged in the bail petition, it appears that grave offences are there against the accused and the punishment provided is large and the effect of his acts brought misery to many. As per record, he is part of a network in human trafficking crossing the national boundaries. Looking at 11 the total innocence pleaded by the petitioner who contends that the entire case is false, this Court is unable to accede to it. The nature of his occupation allows him to indulge in similar activities and the fact that many of these gullible people belonged to an area of him raises clear suspicion that there is likelihood of influencing them. The above reasons having been viewed in the light of the ratio of their Lordships in Prashanta Kumar Sarkar v. Ashish Chatterjee4 makes this Court to think that it is not the appropriate stage to grant the prayer.
15. In the result, this Criminal Petition is dismissed.
________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 21.08.2024 Ivd 4 (2010) 14 SCC 496 12 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CRIMINAL PETITION No.4997 of 2024 Date: 21.08.2024 Ivd