Introduction

A recent ruling by a Hon’ble Single Judge Bench of the Bombay High Court dealt with an anticipatory bail application in the case of Rohit Singh and Ors Versus The State of Maharashtra¹. The Hon’ble Court was pleased to grant pre-arrest bail to the Applicants in connection with offences punishable under Sections 408, 420, and 201 read with Sections 120-B and 34 of the Indian Penal Code, 1860, and Sections 43, 66, 72, and 75 of the Information Technology Act, 2000, for the alleged theft of sensitive, confidential, and important data/information of the First Informant’s Company by the Applicants who were former employees of the Company.

The Hon’ble Court when deciding upon the matter at hand, dealt with the interplay between the Indian Penal Code, 1860, and the Information Technology Act, 2000, and upheld the decision of the Supreme Court and a Division Bench of the High Court in holding that the offences punishable under the Information Technology Act, 2000, had an overriding effect upon the offences punishable under the Indian Penal Code, 1860. Further the Hon’ble Court also determined that once the devices through which the alleged theft of data has occurred have been seized and the chargesheet has been filed, there would be no reason for custodial interrogation.

Facts of the case

The First Informant is a Company that is engaged in the business of risk analysis and deals with volumes of sensitive data of its clients. The Applicants were employees of the First Informant as early as 2004. During this period the First Informant was engaged in business with another Company in Dubai engaged in the same field of business. Disputes arose between the two in 2019 and the civil litigation for the same was ongoing. In and around April 2020 the Company in Dubai set up an Indian Branch wherein Applicant No.5 was a 20% shareholder and the remaining 80% was owned by a co accused who was in judicial custody. Subsequent to setting up of the Indian branch of the concerned company, the Applicants within a period of three days resigned from the First Informant and joined the Indian concern of the rival company. Suspecting foul play, the First Informant employed Deloitte to analyse the data and devices of the Applicants as well as their internal correspondence on their employee email ids. Upon completion of the analysis, it was revealed that the Applicants had surreptitiously stolen over 4 terabytes of data of customers of the First Informant that was present in the laptops, hard drives, pen drives, and other devices that were given to the Applicants as part of their employment with the First Informant. Thereafter an FIR was filed with the Cyber Cell Police, BKC, Mumbai, for offences punishable under Sections 408, 420, and 201 read with Sections 120-B and 34 of the Indian Penal Code, 1860, and Sections 43, 66, 72, and 75 of the Information Technology Act, 2000.

The Applicants apprehending arrest, preferred an application for pre- arrest bail before the Hon’ble Court of Sessions, however, the Learned Sessions Judge declined to exercise discretion in favour of the applicants. Thereafter the Applicants preferred the Anticipatory Bail Application 1392 of 2022 before the Honourable Single Judge Bench of the Bombay High Court and were granted interim relief.

During the course of the matter, the Investigating Authority had filed a chargesheet running over 40,000 pages long, as well as a supplementary chargesheet. The Investigating Authority upon the order of the Hon’ble High Court further submitted an Affidavit highlighting reasons for requiring custodial interrogation of the Applicant’s.

Issues

1. Impermissibility of prosecution for offences punishable under Sections 408,420, and 201 read with Sections 120 - B and 34 of the Indian Penal Code, 1860, when the Applicant is faced with prosecution for offences punishable under Sections 43, 66, 72 and 75 of the Information Technology Act 2000.
2. Necessity of custodial interrogation of the Applicants.

Applicants’ contentions

1. The Counsel for the Applicants submitted that the matter was not of a criminal nature and was born out of the fact that the Applicants had tendered resignations and joined a rival business of the First Informant, and custodial interrogation was not required as the Applicants had been cooperative with the Investigative authorities. Moreover, the Counsel for the Applicant emphasized that the chargesheet ran 40,000 pages long and the devices and equipment had been seized by the investigative authority. Therefore, the investigation was complete and there was no propriety in arresting the applicants.
2. The Counsel for the Applicant submitted that the Applicants were arraigned for offences punishable under Sections 66, 72 and 75 of the Information Technology Act, 2000 and therefore could not be prosecuted under the Indian Penal Code 1860. Further the offences under the Information Technology Act, 2000, were bailable and therefore the applicants were entitled to pre-arrest bail.
3. The Counsel for the Applicants supported their argument by relying on the Supreme Court case of Sharad Babu Digumarti Vs. Government (NCT of Delhi)² wherein the Apex Court when deciding a petition for quashing proceedings for offences punishable under Section 292 of the Indian Penal Code, 1860, and Sections 66, 67 and 69 of the Information Technology Act 2000, held that the “It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent.”
4. The Counsel for the Applicants further cited the Hon’ble Division Bench Judgment of the Bombay High Court in Gagan Harish Sharma and Others Vs. State of Maharashtra Through Senior Police Inspector and Ors³. wherein the Hon’ble Division Bench placed heavy reliance on the Sharad Babu Digumarti judgement and stated “When such Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Indian Penal Code. The offence of Section 379 in terms of technology is also covered under Section 43. Further, as far as Section 408 is concerned which relates to criminal breach of trust, by a clerk or servant who is entrusted in such capacity with the property or with any dominion over property, would also fall within the purview of Section 43 would intents to cover any act of accessing a computer by a person without permission of the owner or a person in charge of computer and/or stealing of any data, computer data base or any information from such computer or a computer system including information or data held or stored in any removable storage medium and if it is done with fraudulent and dishonest intention then it amounts to an offence. The ingredients of an offences under which are attracted by invoking and applying the Section 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code and Information Technology Act would be a brazen violation of protection against double jeopardy.”

Respondent no.1’s contentions

1. The Counsel for Respondent No.1 (State) submitted that the offence under Section 120 - B of the Indian Penal Code 1860, is distinct from the offences punishable under the Information Technology Act, 2000, and therefore the alleged bar for prosecution would not apply with respect to the same.
2. The Counsel for the Respondent No.1 further submitted that the devices by which data had been surreptitiously stolen away were yet to be recovered from the Applicants, moreover the Applicants had not cooperated with the Investigating Officer and that as per the affidavit of the Investigating Officer custodial interrogation of the Applicants was required.

Respondent no.2’s contentions

1. The Counsel for Respondent No.2 (First Informant) submitted that the Hon’ble Court had to keep in mind the magnitude of the offences when deciding on pre-arrest bail. The theft of 4 TB of data from the First Informant was to be seen in context with the speed in which the Applicants resigned from the First Informant Company and joined the rival company owned by Applicant No.5 and the co-accused. It was further submitted that custodial interrogation was warranted as the Applicants had been giving evasive and tutored replies when summoned and further had been tampering with evidence.
2. The Counsel for Respondent No.2 submitted that in the given facts and circumstances of the case the Hon’ble Single Judge Bench could deviate form the decision of the Learned Division Judge Bench in Gagan Sharma without violation of the doctrine of stare decisis and the norms of judicial propriety as the Division Bench only took into account the ingredients of Section 43 (j) read with explanation (v) of the Information Technology Act, 2000, however it did not advert to the fact that electronic data is distinct from a computer resource. The ingredients of the offences punishable under the Indian Penal Code, 1860, with which the Applicants have been charged, are different from the ingredients of the offences punishable under the Information Technology Act, 2000, therefore the principles enunciated in the case of Gagan Sharma may not apply to the facts of the case at hand and therefore the Hon’ble Court may deviate from the same.

Observations of the Court

1. On the Issue of Impermissibility of prosecution for offences punishable for offences under Sections 408,420,201 read with Sections 34 of the Indian Penal Code 1860, when the Applicant is faced with prosecution for offences under Sections 43, 66, 72 and 75 of the Information Technology Act 2000.
   
   The Hon’ble Single Judge Bench summarised the ratio of the Gagan Sharma Judgement and stated 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.”
   The Hon’ble Court further analysed the case of State of Andhra Pradesh Versus Ramchandra Rabidas @ Ratan Rabidas and Anr⁴ wherein the Apex Court considered the justifiability of the directions of the Hon’ble Gauhati High Court stating that traffic offences should only be dealt with under provisions of the Motor Vehicles Act, 1988 and that in cases of road traffic or motor vehicle offences, prosecution under the Indian Penal Code, 1860, is without sanction of the law. The Apex Court disagreed with the same and relied on Section 26 of the General Clauses Act, 1897, which envisages the consequences where an act or omission constitutes an offence under two of more enactments. The Apex Court held that it was a well settled principle that an act or omission can constitute an offence under the Indian Penal Code, 1860, and at the same time, be an offence under any other law. Therefore, it was held that if a prosecution, if otherwise maintainable, would lie both under the Indian Penal Code, 1860, and the Motor Vehicles Act, 1988.
   The Single Judge Bench however in this regard while noting the decision of the Supreme Court in matters related to the Motor Vehicles Act, 1988, and the Indian Penal Code, 1860, the Court relied on a judgement of the Supreme Court in State of Uttar Pradesh Versus Aman Mittal and Anr⁵which arose in the context of prosecution under the provisions of the Legal Metrology Act, 2009, and the Indian Penal Code, in a similar set of facts. The Supreme Court here referred to both the Sharad Babu Digumarti case and the decision in the Gagan Sharma case and held “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.”
   Therefore, observing the Supreme Court’s refrain in deciding upon the correctness of the Gagan Sharma decision of the Division Bench of the Bombay High Court. The Learned Single Judge Bench in the case at hand was constrained to rule accordingly and held that it would be impermissible for the Applicants to be tried for offences punishable under the Indian Penal Code, 1860, in lieu of the overriding effect of the Information Technology Act, 2000.
2. On the issue of necessity of custodial interrogation.
   The Learned single judge bench while granting pre arrest bail made the following broad observations with regards to the merits of the case.
   As per the facts it was clear that there was a commercial dispute between the First Informant’s Company and the rival company’s Dubai concern which pre-dated the commission of the offence and therefore the same had to be considered. The Hon’ble Court noted that there may have been criminality involved in the time at which the sister concern was set up in April 2020 and the resignation of the Applicants however the same was a matter of trial.
   The Hon’ble Court observed that the devices in question had already been seized and the Investigating Authority had collected voluminous material during the investigation. The charge sheet and supplementary chargesheet had already been filed, therefore the custodial interrogation was not warranted.
   The Hon’ble Court in the alternative stated that even if the offences under the Indian Penal Code, 1860, were to be considered the same entailed sentences less than seven years, therefore there were grounds to grant pre arrest bail.

Conclusion
The Learned Single Judge Bench in lieu of the observations made above, granted the prayer of the Applicants for pre arrest bail and ordered that in the event of arrest of the Applicants in relation to the offences in question the Applicant’s are to be released after furnishing a P.R. bond of Rs.50,000/- each with one or two sureties in the like for the same amount.

By - Parshva Shah