Full Judgement
Bombay High Court
Rohit Singh And Ors vs State Of Maharashtra on 9 February, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:6641
928-ABA-1329-22.DOC
Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 1329 OF 2022
1. Rohit Singh 2. Dilip Singh 3. Imtiaz Nanjee
4. Linette Dsouza 5. Azeem Kanjiani
6. Hemant Chheda 7. Milind Narkhede and
8. Neeraj Rajwade ...Applicants
Versus
The State of Maharashtra and Others ...
Respondents
Mr. Ashok Mundargi, Senior Counsel with Ms. Priyanka
Chavan with Mr. Robin Fernandes, Mr. Zaheer Memon, Ms.
Lillyan Thangkhiew and Ms. Nikita Jadhav i/b Vesta Legal, for
Applicant Nos. 1 to 7.
Mr. Parvez Memon with Mr. Zulfiquar Memon, Mr. Munir
Merchant, Mr. Chirag Naik, Mr. Mahesh Ahire, Ms. Noopur
Mathrawala and Mr. Prasanna Kumar i/b MZM Legal LLP, for
Applicant No. 8.
Mr. Amit Desai, Senior Counsel with Mr. Pranav Bedheka,
Mr. Prashant Pawar, Gopalkrishna Shenoy, Abhay Jadeja,
Varun Satiya, Arun Unnikrishnan and Vanshika Shroff i/b
Jadeja Satiya, for Respondent No. 2.
Smt. A. A. Takalkar, APP for State/Respondent.
Mr. Mangesh Majgor, PI, (W) Region Cyber Crime Police
Station, Present.
CORAM :- N. J. JAMADAR, J.
RESERVED ON :- 21st DECEMBER, 2023.
PRONOUNCED ON :- 9th FEBRUARY, 2024.
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ORDER:
-
1) This application is preferred for pre-arrest bail in
connection with CR No. 34 of 2021, registered with Cyber Cell
Police Station, BKC, Mumbai, for the offences punishable under
Sections 120-B, 408, 420 and 201 read with Section 34 of Indian
Penal Code, 1860 ("the Penal Code") and Sections 43, 66, 72 and
75 of the Information Technology Act, 2000 ("I.T. Act, 2000").
2) The applicants are former employees of M/s. K.M Dastur
Reinsurance Brokers Pvt. Ltd. (KMD), of which Dayanand
Madhukar Pate, the informant is the Chief Manger. The
applicants resigned from the Company during the period 27 th
May, 2020 to 30th May, 2020. Since the applicants resigned from
KMD abruptly after spending significant time, without ascribing
any particular reason, suspicion arose. KMD thus entrusted
Deloitte Toche Tohmastu India LLP (Deloitte) to carry out
analysis of the electronic equipments and hardware used by
these employees and their trail of correspondence by the
respective employees, through the designated e-mail ID. The
analysis revealed the commission of the offences of breach of
trust, cheating and data theft in pursuance of a criminal
conspiracy.
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3) The gravamen of indictment against the applicants is that
before the applicants tendered their resignation, the applicants
had clandestinely stolen sensitive, confidential and most
important information/data of KMD. Later on, after
surreptitiously transferring the data owned by KMD, the
applicants joined M/s. Deinon Risk Services Pvt. Ltd. (Deinon
India), a consultancy firm providing risk assessment services.
4) To appreciate the allegations, it is necessary to have a
historical perspective. KMD is an entity primarily owned and
controlled by Mr. Eric Dastur. KMD has been engaged in the
business of insurance and reinsurance brokerage since the year
1991. M/s. K.M Dastur Insurance Brokers Pvt. LLC, now M/s.
Deinon Insurance Brokers LLC (Deinon Dubai) is also engaged in
similar business. Mahmood Khairaz, (one of the co-accused, who
was arrested in the instant crime), held 49% shareholding in
Deinon Dubai and managed its day-to-day operations. It appears
that KMD and Deinon Dubai worked in close co-operation. It
seems in or around 2019, disputes arose between Eric Dastur of
KMD and Mahmood Khairaz of Deinon Dubai. Another entity M/s
Deinon Risk Services Pvt. Ltd., (Deinon India) came to be
incorporated on 8th April, 2020. Mahmood Khairaz, the co-
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accused holds 80% shareholding and Azeem Kanjiani, the
applicant No. 5 holds 20% shareholding in Deinon India.
5) The first informant alleges the applicants were working with
KMD since years. The applicant - Azeem Kanjiani was working
since November, 2004. Co-accused - Mahmood Khairaz was
working in the Analystics Department of KMD. Mahmood Khairaz
tendered resignation in the month of February, 2020. The
applicants including Azeem Kanjiani, who was working as a
Senior Vice President (Head of the Aviation Department), tendered
resignation during the period 27th May, 2020 to 30th May, 2020.
Post resignation, they joined Deinon India.
6) The crux of the allegations against the applicants is that
KMD has its business spread across a variety of sectors such as
aviation, marine energy, oil, gas etc., wherein companies engaged
in businesses in such sectors employ KMD as a broker. Sensitive
and confidential information of all such companies i.e. the
customers of KMD, has been stored with KMD. During the course
of its business operations KMD retains information of its
customers as regards their business, risk information, terms and
conditions of contract, insurance premium etc. During the
employment with KMD, the applicants were provided with
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Laptops, Hard Drives, Pen Drives etc., which contained such
sensitive and confidential information.
7) The analysis conducted by Deloitte revealed that the
applicants and the other co-accused had conspired dishonestly
and fradulently to cause wrongful loss to KMD by transferring/
preserving sensitive and confidential data and joined Denion
India, a competing entity formed by accused No. 5- Azeem
Kanjiani and Mahmood Khairaz, and thereby used such
information to generate the business for Denion India. Thus 4TB
data has allegedly been transferred and stolen away.
8) Apprehending arrest, the applicants had preferred an
application for pre-arrest bail before the Court of Session. As the
learned Additional Sessions Judge declined to exercise discretion
in favour of the applicants, they have preferred these application.
Vide order dated 13th May, 2022, this Court granted interim relief
to the applicants, which has thereafter been extended from time
to time. By a further order dated 6 th September, 2022, having
noted that investigation was complete and charge-sheet had been
lodged, this Court directed the Investigating Officer to file an
affidavit to apprise the Court as to why the arrest and custodial
interrogation of the applicants was warranted.
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9) The Investigating Officer has filed an affidavit.
10) Affidavits-in-rejoinder have been filed by the applicants.
11) It seems the Investigating Officer has carried out further
investigation and has filed a supplementary charge-sheet on 16th
June, 2022. The charge-sheets run into more than 40,000 pages.
12) In the context of the aforesaid nature of the accusation and
the material on record, I have heard Mr. Mundargi, the learned
Senior Advocate for the applicant Nos. 1 to 7, Mr. Parvez Memon,
the learned Advocate for the applicant No.8, Smt. Takalkar, the
learned APP for State and Mr. Amit Desai, the learned Senior
Advocate for the respondent No.-2- first informant, at length.
13) The learned Counsel, in the context of the voluminous
material on record, took the Court through the relevant part of
the record which bears upon the entitlement for pre-arrest bail.
The learned Counsel have also tendered their written notes to
elaborate their submissions canvassed across the bar.
14) Mr. Mundargi, the learned Senior Counsel for the applicant
Nos. 1 to 7 submitted that the applicants are being hounded up
for having tendered resignations and joined another entity which
happens to deal in a similar business. The applicants have duly
complied with the notices under Section 41-A of the Code of
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Criminal Procedure, 1973, and rendered requisite co-operation
during the course of investigation. The equipments which the
company had given to the applicants were surrendered. In
addition, the Investigating Officer has seized the equipments and
material which appeared to be necessary to facilitate investigation
and for the purpose of trial. The entire record is with the
investigating agency. The very fact that charge-sheets running
into 40,000 odd pages have been filed indicates that the
investigation is complete for all intent and purpose. Therefore, at
this stage, there is no propriety in arresting the applicants, and,
hence, the order of interim bail be made absolute.
15) Mr. Mundargi submitted that, in any event, as the
applicants have been arraigned for the offences punishable under
Sections 66, 72 and 75 of the I.T. Act, 2000, they cannot be
prosecuted for the offences punishable under the Penal Code,
1860. All the offences under I.T Act, 2000 with which the
applicants have been charged are bailable. Since recourse to the
offences under Sections 120-B, 408, 420 and 201 of the Penal
Code, 1860 is impermissible, the applicants deserve the relief of
pre-arrest bail.
16) Strong reliance was placed on the decision of the Supreme
Court in the case of Sharat Babu Digumarti Vs. Government 7/25
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(NCT of Delhi)1 and a Division Bench Judgment of this Court in
the case of Gagan Harsh Sharma and Others Vs. State of
Maharashtra Through Sr. Police Inspector and Others2. Even
otherwise, according to Mr. Mundargi, none of the offences under
the Penal Code, 1860 entail punishment of more than seven
years. Thus, the applicants deserve the exercise of discretion.
17) Mr. Parvez Memon, the learned Counsel for the applicant
No. 8 - Neeraj Rajawade submitted that the applicant had
resigned from KMD on 28th February, 2020 much before the rest
of the 10 employees, resigned from KMD. Thus the allegation that
the applicant was privy to the alleged conspiracy pursuant to
which the employees of KMD resigned during 27th May, 2020 to
30th May, 2020 cannot be attributed to the applicant.
18) Mr. Menon further submitted that initially the investigating
agency had proposed to cite the applicant as a witness. However,
when the applicant declined to give his statement under Section
164 of the Code, 1973, the applicant malafide came to be
implicated as an accused, on 25th May, 2020. Mr. Menon
submitted that the endeavour of KMD has been to give a colour of
criminal prosecution to a civil dispute between Eric Dastur and
1 2017 2 SCC 18 2 2018 SCC Online Bom 17705 8/25
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Mahmood Khairaz and the applicant has been made to suffer
collateral damage in the fight between Eric Dastur and Mahmood
Khairaz, the co-accused.
19) Smt. Takalkar, the learned APP, countered the submissions
on behalf of the applicants. An endeavour was made to draw
home the point that the custodial interrogation of the applicants
is still indispensable for an effective investigation and
prosecution. Smt. Takalkar submitted that since the applicants
have been arraigned for an offence punishable under Section
120-B of the Penal Code, 1860, which is a distinct offence than
the offences punishable under I.T Act, 2000, the alleged bar for
prosecution for the offences punishable under the Penal Code
does not apply. It was submitted with a degree of vehemence that
the devices by which the data has been surreptitiously stolen
away are yet to be recovered from the applicants. Moreover, the
applicants have not co-operated with the Investigating Officer.
20) Attention of the Court was invited to the averments in
paragraph No. 13 of the affidavit of the Investigating Officer
spelling out the reasons for which the custodial interrogation of
the applicants is warranted and the role attributed to each of the
applicants.
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21) Mr. Amit Desai, the learned Senior Advocate for the
respondent No. 2- the first informant strenuously submitted that
the magnitude of the offences is required to be kept in view. The
allegations are that 4 Terabyte (TB) data has been secretly stolen.
The theft of the data is required to be seen in the context of the
speed with which the applicants and the co-accused resigned
from KMD and joined Deinon India. In fact, the groundwork was
started when the applicant No.8 resigned from KMD in the month
of February, 2020. Mr. Desai submitted that the material on
record indicates that while Azeem Kanjiani was still in
employment with KMD, efforts were made to start Deinon India.
22) Mr. Desai would urge that it is well recognized that the
custodial interrogation is qualitatively different. In the case at
hand, according to Mr. Desai, there has been an effort to cover up
the criminal acts. All the accused have given evasive and tutored
replies when they were summoned, while armed with the
protective order. The applicants and the co-accused have been
hampering and tampering with the evidence. In the
circumstances, the applicants cannot be heard to urge that the
applicants deserve the relief of pre-arrest bail as charge-sheets
have been lodged. To lend support to these submissions, Mr.
Desai placed reliance on a number of judgments.
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23) Particular emphasis was laid on the judgments of the
Supreme Court in the cases of Central Bureau of Investigation V/
s. Rathin Dandapat and Ors.3, Sumitha Pradeep V/s. Arun
Kumar C.K. and Anr.4, State rep. By the C.B.I. V/s. Anil Sharma5
Sudhir V/s. State of Maharashtra and Anr.6, Maruti Nivrutti
Navale V/s. State of Maharashtra and Anr.7, Supreme Bhiwandi
Wada Manor Infrastructure Pvt. Ltd. V/s. State of Maharashtra
and Anr.8.
24) Mr. Desai joined the issue of non-applicability of the
provisions contained in the Penal Code, 1860 to the acts in
question on the count that they are covered by the Special Act i.e.
I.T Act, 2000 by canvassing a submission that the issue cannot
be said to have been concluded yet. A strenuous effort was made
by Mr. Desai to persuade the Court to hold that despite a Division
Bench Judgment of this Court in the case of Gagan Sharma
(supra), without violating the doctrine of stare decisis and the
norms of judicial propriety, this Court can hold that the offences
3 (2016) 1 SCC 507 4 2022 SCC Online SC 1529 5 (1997) 7 SCC 187 6 (2016) 1 SCC 146 7 (2012) 9 SCC 235 8 (2021) 8 SCC 753 11/25
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punishable under the Penal Code, 1860 can be tried de hors the
offences punishable under IT Act, 2000.
25) It was submitted that the decision of the Division Bench in
the case of Gagan Sharma (supra) strictly speaking does not
constitute a ratio decidendi. Gagan Sharma (supra) only took
into account ingredients of Section 43 (j) read with Explanation
(v) of I.T Act, 2000. Gagan Sharma (supra) did not advert to the
fact that electronic data is distinct from a computer resource. The
ingredients of the offences punishable under the Penal Code, with
which the applicants have been charged, are different from the
ingredients of the offences punishable under I.T Act. Therefore,
the principles enunciated in the case of Gagan Sharma (supra)
may not apply to the facts of the case.
26) Reliance was, inter alia, placed on the judgment of the
Supreme Court in the case of State of Arunachal Pradesh V/s.
Ramchandra Rabidas @ Ratan Rabidas and Anr. 9 an order
passed by the learned Single Judge of this Court in the case of
Sameer Subhash Vhora V/s. The State of Maharashtra 10, the
order passed by the Punjab and Haryana High Court in the case
of Ramandeep Singh V/s. State of Punjab11 and an order passed
9 (2019) 10 SCC 75 10 ABA 690 of 2019 dt 21 June 2019 11 Cri. M.A.Nos.29553 and 30630 of 2020 dated 17 March 2021. 12/25
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by the Karnataka High Court in the case of Navin Kumar R @
Naveen and Anr. V/s. State of Karnataka and Anr.12
27) Mr. Desai also made an endeavour to urge that the decision
in the case of Gagan Sharma (supra) does not preclude this Court
from taking a different view of the matter as the adherence to the
rule of precedent results in manifest injustice. To this end,
reliance was placed on a Full Bench judgment of the Andhra
Pradesh High Court in the case of The Commissioner of Income
Tax, Andhra Pradesh, Hyderabad V/s. B. R. Constructions,
Hyderabad, 13 wherein it was postulated as under :
"A single Judge or Benches of High Court cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view on the question of law for the reason that certainty and uniformity in the administration of justice is of paramount importance. But if the earlier judgment is erroneous or adherence to rule of precedents results in manifest injustice, differing from earlier judgment will be permissible."
28) An endeavour was made by Mr. Desai to urge that there are
justifiable grounds to deviate from enunciation of law in the case
of Ganga Shrama (supra).
29) In the wake of aforesaid submission, to begin with the
ground of impermissibility of prosecution for the offences
punishable under Sections 408, 420, and 201 read with Section
12 Cr. Petition No.3173 of 2023 dated 12 July 2023 13 1993(1) APLJ 63 (HC) 13/25
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34 of the Penal Code when the applicants are facing prosecution
for the offences punishable under Section 43, 66, 72, and 75 of
the Information Technology Act, 2000, deserves to be briefly dealt
with.
30) In the case of Gagan Sharma (supra) the Division Bench of
this Court held that if a special enactment like the Information
Technology Act, 2000, contains a special mechanism to deal with
the offences falling within the purview of the Information
Technology Act, 2000, namely Sections 43 and 66, then the
invocation and application of the provisions contained in Sections
379, 420 and 408 of the Penal Code in the same set of facts is
totally uncalled for. It was observed that the ingredients of the
offences punishable under Sections 420, 408 and 379 of the
Penal Code are covered by Section by 66 of the Information
Technology Act, 2000 and prosecuting the petitioners under both,
the Penal Code and Information Technology Act would be a
brazen violation of protection against double jeopardy.
31) It would be contextually relevant to note that in the case of
Ramchandra Rabidas (supra) the Supreme Court considered the
justifiability of the direction by the Gauhati High Court that road
traffic offences shall be dealt with only under the provisions of
Motor Vehicles Act, 1988 and that in cases of road traffic or motor
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vehicle offences, prosecution under the provisions of the Penal
Code is without sanction of law, and recourse to the provisions of
the Penal Code would be unsustainable in law.
32) Disagreeing with the aforesaid directions of the Gauhati
High Court, the Supreme Court, after referring to the provisions
contained in Section 26 of the General Clauses Act, 1897, which
envisages the consequences where an act or omission constitutes
an offence under two or more enactments, held that it is well
settled that an act or omission can constitute an offence under
Penal Code and, at the same time, be an offence under any other
law. The finding of the High Court that the prosecution of
offenders under two statutes i.e. the MV Act and Penal Code, is
unsustainable and contrary to law, was, therefore, set aside. In
the said case, the Supreme Court referred to its decisions in the
cases of T. S. Baliah vs. T. S. Rangachari14 and State of
Maharashtra vs. Sayyed Hassan15. It was thereafter enunciated
that if a prosecution, if otherwise maintainable, would lie both
under Penal Code and MV Act, since both the statues operate
with full vigour, in their own independent spheres, even
assuming that some of the provisions of the MV Act and Penal
14 (1969) 3 SCR 65.
15 (2019) 18 SCC 145.
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Code are overlapping, it cannot be said that the offences under
both the statutes are incompatible.
33) The decision of the Supreme Court in the case of State of
Uttar Pradesh V/s. Aman Mittal and Anr.16 arose in the context of
the prosecution under the provisions of the Legal Metrology Act,
2009 and Penal Code, in the same set of facts. The Supreme
Court referred to its decision in the case of Sharat Babu
Digumarti (supra) and the decision of the Division Bench in the
case of Gagan Sharma (supra) and thereafter observed:
"25. That the Bombay High Court in Gagan Harsh Sharma has found that even a dishonest and fraudulent act falls within the scope of Section 66 of the IT Act. We are not called upon in the present appeals to examine whether an accused can be tried for an offence under IPC in view of Section 66 of the IT Act. Such question can be raised and decided in appropriate case."
34) The aforesaid observations of the Supreme Court indicate
that the Supreme Court considered it appropriate not to
pronounce on the aspect of correctness of the decision in Gagan
Sharma (surpa) and left the said question to be raised and
decided in an appropriate case.
35) Beyond the aforesaid consideration, I do not deem it
appropriate to delve more on the correctness of the view in the
case of Gagan Sharma (supra). I find it difficult to accede to the
16 (2019) 19 SCC 740 16/25
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invitation of Mr. Desai to delve into the correctness of the view in
the case of Gagan Sharma (supra). The legal position is
absolutely clear. A learned Single Judge cannot differ from a
decision of a Division Bench except when that decision or
judgment relied upon in that decision is overruled by a Full
Bench or the Supreme Court or the law laid down by the Full
Bench or the Supreme Court is inconsistent with the decision of
the Division Bench.
36) In the case at hand, this principle of judicial propriety
applies with even greater force as Gagan Sharma (supra) is
referred to a Larger Bench and the decision of the Larger Bench is
awaited. Another principle which is equally well settled needs to
be noted. Merely because a judgment is referred to a larger
Bench, it does not lose its precedential authority. Moreover,
having regard to the context in which the aforesaid question
arises in the facts of this case, it may be unwarranted to delve
deep into this aspect. This leads me to the merits of the claim for
pre-arrest bail.
37) To start with, few facts deserve to be noted at the cost of
repetition. First, the existence of a business relationship between
KMD and Deinon Dubai is rather incontrovertible. Mahmood
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looked after the data analytics department of KMD as well. The
fact that disputes arose between Eric Dastur of KMD and
Mahmood Khairaz of Deinon Dubai is prima facie borne out by
notice dated 13th January, 2021, addressed by Deinon Dubai to
Eric Dastur and others seeking payment of AED 60,789,624. On
1st October, 2021 a notice was addressed by Deinon Dubai to Mr.
Colin A. T. Reen an associate of Eric Dastur invoking arbitration.
On 13th January, 2022, a decree was passed by the Dubai Court
of First Instance ordering ENSZ Consultancy Services (DMCC),
an associate company of Eric Dastur, to pay an amount of USD
2,859,174.24 or its equivalent amount in AED and a Writ of
Execution Notice and Notification of payment dated 17 th April,
2022 addressed by Dubai Court of First Instance was followed by
orders dated 2nd November, 2022 and 10th November, 2022 to
auction certain properties of ENSZ.
38) Incontrovertibly, Deinon India was incorporated on 8 th April,
2020 with Mahmood Khairaz having 80% shareholding and
applicant No. 5- Azeem Kanjiani holding 20% shareholding. The
applicant No. 8 resigned on 28th February, 2020 and joined
Deinon India on 1st June, 2020. The rest of the applicants
resigned during the period 27th May, 2020 to 30th May, 2020
and joined Deinon India sooner or later. The FIR came to be
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lodged post forensic analysis by Deloitte on 15th June, 2021. As
noted above, post completion of investigation, charge-sheet was
lodged, followed by a supplementary charge-sheet. The applicants
are on interim protection.
39) It is in this backdrop, by an order dated 6th September,
2022, this Court was persuaded to direct the Investigating Officer
to justify the necessity of arrest and further custodial
interrogation. Para No. 13 of the affidavit-in-reply contains the
reasons for which the Investigating Officer seeks the custody of
the applicant. It is, inter alia, contended that custodial
interrogation is required to ascertain to whom the applicants
transferred the data; the details of when and in what manner the
theft and misappropriation was committed; the modus operandi/
technique used by the applicant for committing the said crime; to
ascertain as to how the 6 GB data (which included the data of
aviation department and also other departments) of the
complainant company was found in the custody of Hemant
Chheda, the applicant No. 6, who was working in Accounts
Department and to also ascertain whether the applicants and
other accused were still monitoring the business of any of the
offices of the informant company, etc.
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40) In the backdrop of the aforesaid facts and the grounds
sought to be urged on behalf of the applicants, the genesis of the
alleged offences deserves to be kept in view. As noted above, the
genesis of the offences appears to be in commercial disputes
which arose between entities representing and/or associated with
Eric Dastur and Mahmood Khairaz. There is material to indicate
that even prior to the lodging of the FIR, notices were exchanged
between them and/or the entities represented by them. Mahmood
Khairaz allegedly enticed away the employees of KMD. Out of
them, applicant Azeem Kanjiani is stated to be the mastermind.
The applicant Azeem Kanjiani along with co-accused Mahmood
Khairaz had discussions with the Chief of PIIQ London, a
competitor of KMD, in the month of November, 2019 and,
thereafter, Deinon India was registered in April, 2020. It is alleged
the accused No.5 Azzem and Khairaz instructed the other
accused to transfer the data containing sensitive information and
induced them to resign from the company.
41) Prima facie, the incorporation of a new company Deinon
India in April, 2020 and the resignation of the applicants, the
then employees of KMD, within a couple of months thereafter and
their joining Deinon India may not be a matter of co-incidence.
However, it is the aspect of the criminality involved in the entire
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exercise that is a matter for adjudication. Since it is alleged that
the applicants had surrendered their devices while resigning from
the company and those very devices were sent for analysis to
Deloitte and subsequently also, during the course of
investigation, further devices have been seized, and the
investigating agency has collected voluminous material during
the course of investigation, at this stage, the necessity of further
custodial interrogation of the applicants is required to be
appreciated.
42) Indisputably, Mahmood Khairaz was arrested and
remanded to police custody. The stand of the co-accused
Mahmood Khairaz as is evident from the affidavit-in-reply of the
Investigating Officer is that the data recovered from Deinon India
was with him because he was associated with KMD. However,
Mahmood Khairaz could not provide necessary legal documents
to substantiate the said claim. If viewed in the backdrop of the
business relationship between the parties especially Eric Dastur
and Mahmood Khairaz and the related entities and the nature of
the business, the questions as to whether the KMD could lay
exclusive right to hold the data, which allegedly found its way to
Deinon India, would warrant adjudication. Whether the data was
in the public domain, what was the source of the data which was
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acquired by Deinon India and whether the acts attributed to the
applicants were the causes of the alleged transfer of data to
Deinon India and other entities, in my view, are all the matters
for adjudication of the trial.
43) In the totality of circumstances, with the amount of
material collected during the course of investigation and having
filed charge-sheet and supplementary charge-sheet, at this stage,
the custodial interrogation of the applicants does not seem
warranted. The Court cannot lose sight of the fact that
commercial disputes had resulted in business rivalry even before
the lodging of the FIR.
44) The mere fact that the applicants resigned from the
company and joined a business rival, in a situation of this
nature, operates both ways. On the one hand, it constitutes a
motive for the alleged offences, and, on the other hand, it
furnishes a ground for false implication.
45) The fact that none of the offences under the Penal Code,
1860, for which the applicants have been arraigned, entails
punishment exceeding seven years also assumes significance.
Thus, in view of the pronouncement of the Supreme Court in the
case of Satender Kumar Antil vs Central Bureau Of
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Investigation17, the Court may be justified in exercising discretion
to release the accused on bail.
46) Indisputably, the applicants have appeared before the
Investigating Officer on multiple occasions. The allegations that
they have not co-operated with the investigation cannot be taken
at their face value. It is not a case where even after filing the
charge-sheet and the supplementary charge-sheet, the
investigating agency has professed to enter into further
investigation and insisted upon the presence of the applicants to
facilitate such further investigation. The liberty of the applicants
cannot be jeopardised on an assertion that the applicants have
not co-operated with the investigation.
47) In substance, in the case at hand, at this length of time,
the custodial interrogation of the applicants does not seem
warranted. All the applicants appear to have roots in society. In
the context of the seizure of the devices and equipments and
analysis thereof, at this stage, the possibility of tampering with
evidence and fleeing away from justice also appears remote.
48) I am, therefore, impelled to exercise the discretion in favour
of the applicants.
17 (2022) 10 SCC 51
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49) Hence, the following order:
:ORDER:
(i) The application stands allowed.
(ii) In the event of arrest of the applicants, they be released
on bail in CR No. 34 of 2021, registered with Cyber Cell
Police Station, BKC, Mumbai, for the offences
punishable under Sections 120-B, 408, 420 and 201
read with Section 34 of Indian Penal Code, 1860 and
Sections 66, 72 and 75 of the Information Technology
Act, 2000, on furnishing a P.R. Bond in the sum of
Rs.50,000/-, each, with one or two sureties in the like
amount.
(iii) The applicants shall attend Cyber Police Station, BKC,
Mumbai, as and when directed, with at least three days
prior intimation, during the period of six months from
today,
(iv) The applicants shall not tamper with the prosecution
evidence and/or give threat or inducement to the first
informant and any of the persons acquainted with the
facts of the case.
(v) By way of abundant caution, it is clarified that the
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observations made hereinabove are confined for the
purpose of determination of entitlement for pre-arrest
bail and they may not be construed as an expression of
opinion on the guilt or otherwise of the applicants and
the trial court shall not be influenced by any of
observations made hereinabove.
(vi) In view of disposal of the Bail Application, the Interim
Application also stands disposed.
[N. J. JAMADAR, J.]
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