Gujarat High Court
Abdul Wahab Shermohammad Pathan vs State Of Gujarat on 27 October, 2023
NEUTRAL CITATION
R/CR.MA/11942/2023 ORDER DATED: 27/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 11942 of 2023
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ABDUL WAHAB SHERMOHAMMAD PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR A U NAIR, ADVOCATE FOR
MR SAMIR B GOGDA(11306) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 27/10/2023
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R.NO.11191011220118 of 2022 registered with DCB Police Station, Ahmedabad for offence under Sections 123 and 120(B) of the Indian Penal Code, 1860 (herein after referred to as the "IPC") and Section 65, 66(c), 66(F) and 66a of the Information Technology Act (herein after referred to as the "Act").
2. Learned advocate appearing on behalf of the applicant submits that in present case, the investigation is over and charge-sheet is filed. The present FIR has been lodged against the present applicant for the offences punishable under Sections 123 and 120(B) of the IPC and Section 65, 66(c), 66(F) and 66a of the Act.
Page 1 of 7 Downloaded on : Fri Oct 27 20:50:58 IST 2023NEUTRAL CITATION R/CR.MA/11942/2023 ORDER DATED: 27/10/2023 undefined 2.1 Learned advocate for the applicant has submitted that as per the case of prosecution, the applicant is stated to be in touch with the citizens of Pakistan and had provided Indian mobile sim-cards duly activated to his Pakistani counter part. He has submitted that upon prima-facie reading of the FIR in question, the offence punishable under Section 123 of the IPC is not duly made out against the present applicant, as the conduct alleged against the present applicant in the FIR as well as in the charge- sheet, would not amount to waging war, as there was no intention on the part of the present applicant to overwhelm and defeat the troops of the king.
2.2 Learned advocate for the applicant has submitted that, as alleged in the FIR against the present applicant, certain websites belonging to the retired or due to retire defense personnel were faked and duplicate websites with the similar names were created. The websites, which are allegedly faked as per the case of prosecution, were not notified by the Government of India under Section 70 of the Information Technology Act, as protected systems. In that view of the matter, the offence punishable under Section 66(F) of the Act would also not be attracted against the present applicant. The other offences alleged against the present applicant are punishable with imprisonment of less than 7 years. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions.
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3. Learned advocate for the applicant sought to rely upon the judgment of Apex Court in case of Mohammad Irfan Vs. State of Karnataka reported in 2022 LiveLaw (SC) 590.
4. Learned APP appearing on behalf of the respondent-State has opposed grant of regular bail by submitting that the government has received an information from a defense personnel of the rank Leftnent Colonel that the defense personnel of Army as well as other armed forces, who have retired or are due to retire in near future, were receiving the messages and calls on Whats'up application asking them to upload their information on the website for monetary gallantry awards. Upon this information, as inquiry / investigation was carried out and it was found that the websites in which the defense personnel were asked to submit their details for gallantry awards, were spurious. Upon an inquiry, it was found that those phone calls and messages were made on Whats' up, which was activated on Indian mobile numbers and operated from Pakistan.
4.1. Learned APP has submitted that the investigation also revealed that it was the present applicant, who had facilitated his Pakistani counter parts by providing them Indian mobile numbers.
4.2. Learned APP has submitted that three websites viz. www.rodra.gov.in, which was operated for the welfare retired defense personnel was faked and other two websites of the similar nature were also faked by the Pakistani counter parts of the present applicant and the servers of the said websites were Page 3 of 7 Downloaded on : Fri Oct 27 20:50:58 IST 2023 NEUTRAL CITATION R/CR.MA/11942/2023 ORDER DATED: 27/10/2023 undefined found to be outside the territory of India. The applicant had also suppressed the fact as regard to whom he was providing the sim- cards and who was going to use the sim-cards in question. He, therefore, submitted that there is a prima-facie case against the present applicant for commission of serious offence, and therefore, the present application should be dismissed.
5. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers. In present case, the investigation is over and charge-sheet has been filed. Upon perusal of FIR, it appears that the intelligence in-put was received by the Crime Branch of the Ahmedabad City to the effect that a website viz. www.rodra.gov.in was faked and another website with similar nature www.rodra.in was created and the retired officers of the armed forces were receiving messages and phone calls on Whats' up application asking them to log in their credentials in the said websites. Upon an inquiry, the said website was found to have been faked. It was further noticed that two other websites viz. www.ksb.gov.in and www.desw.gov.in were also faked and two other websites with similar names viz. www.ksboard.in and www.desw.in were created. The investigation further revealed that the servers of the faked websites were operating from outside the territory of India. Moreover, the telephone numbers, which were used for making the telephone calls and messages to the defense personnel were Indian. However the what's up application for the said numbers was operated from Pakistan. Upon inquiry, it was found that the present applicant had obtained several sim-cards from the witnesses, on one pretext or other, these sim-cards were already Page 4 of 7 Downloaded on : Fri Oct 27 20:50:58 IST 2023 NEUTRAL CITATION R/CR.MA/11942/2023 ORDER DATED: 27/10/2023 undefined activated before they were handed over to the present applicant. The present applicant was in constant touch with an employee in the consulate of Pakistan at New Delhi. The applicant had provided the mobile numbers of the sim-cards which he had procured from the witnesses, as stated herein above, and thereafter, had inserted those sim-cards in his mobile phone instrument, whereas his counter part in Pakistan would download the Whats'up application and would log in the number, which was given by the present applicant to him, upon which the present applicant would receive a one time password on the mobile phone, wherein sim-cards in question was inserted. The said OTP would then be provided by the present applicant to his Pakistani counter part and thus, Whats' up application would get activated in Pakistan on the mobile number provided by the present applicant. The said Whats' up application would thereafter be used to make messages and Whats' up calls to the retired defense personnel and asking them to upload their credentials on the websites, which were faked and spurious, as stated herein above. The intention behind this appears to be of gathering the information about the defense personnel and their whereabouts. The investigation also reveals that the present applicant was in constant touch with an employee of a consulate of Pakistan at New Delhi and had referred several persons, who intended to visit Pakistan to him for visa purposes and had also collected money from them for the said purpose.
6. Learned advocate for the applicant contended that the web-
Page 5 of 7 Downloaded on : Fri Oct 27 20:50:58 IST 2023NEUTRAL CITATION R/CR.MA/11942/2023 ORDER DATED: 27/10/2023 undefined sites in question were not notified by the Government of India as protected system under Section 70 of the Information Technology Act, and therefore, the offence punishable under Section 66(F) of the Act would not be attracted against the present applicant. In this regard, if the provision of Section 66(F) of the Act is seen, 66F (1) (B) of the Act reads as under:-
"66F. Punishment for cyber terrorism.-(1) Whoever,-
(B) knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer data base that is restricted for reasons of the security of the State or foreign relations; or any restricted information, data or computer data base, with reasons to believe that such information, data or computer data base so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism."
Thus, for attracting the offence under Clause(B), as stated herein above, the pre-condition of reporting of the website as a protected system is not necessary.
7. So far as the aspect of Section 123 of the IPC is concerned, learned advocate for the applicant seeks to rely upon the judgment of the Apex Court in the case of Mohammad Irfan (supra), wherein relying upon the judgment of the Patna High Court, the Apex Court has observed as under:-
Page 6 of 7 Downloaded on : Fri Oct 27 20:50:58 IST 2023NEUTRAL CITATION R/CR.MA/11942/2023 ORDER DATED: 27/10/2023 undefined "The expression 'waging war' means and can, I think, only mean 'waging war in the manner usual in war'. In other words, in order to support a conviction on such a charge, it is not enough to show that the persons charged have contrived to obtain possession of an armoury and have, when called upon to surrender it, used the rifles and ammunition so obtained against the King's troops. It must also be shown that the seizure of the armoury was part and parcel of a planned operation and that their intention in resisting the troops of the King was to overwhelm and defeat these troops and then to go on and crush any further opposition with which they might meet until either the leaders of the movement succeeded in obtaining possession of the machinery of Government or until those in possession of it yielded to the demands of their leaders."
8. It is also required to be noted that the present applicant had concealed the fact as regard providing the Indian simcards to Pakistan and activating a What's up application on the said mobile numbers and the purpose for the same. As stated herein above, the intention behind this appears to be procuring secret information about the defense forces. Thus, the present applicant prima-facie appears to have acted against the interest and security of India. Considering the same, the application being devoid of any merit and the same is hereby dismissed.
(M. R. MENGDEY,J) GIRISH Page 7 of 7 Downloaded on : Fri Oct 27 20:50:58 IST 2023