Vijay Govind vs State & Anr.
2014 Latest Caselaw 730 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                    Date of Decision: 07th February, 2014

+       CRL.M.C.1635/2013
        STATE                                   ..... Petitioner
                       Through:      Mr. Dayan Krishnan, ASC with
                                     Ms. Manvi Priya, Advocate

                          versus

        RAJESH GOSAIN & ANR.                     ..... Respondent
                     Through         Mr. Mukesh Kumar, Insp./
                                     Cyber Cell/EOW.
                                     Mr. Sudhir Nandrajog, Sr.
                                     Advocate with Mr. Anurag
                                     Ahluwalia & Mr. Prashant
                                     Ghai, Advocates for R-2

        CRL.M.C.1012/2013 & Crl.M.A.3158/2013
        VIJAY GOVIND                         ..... Petitioner
                       Through: Mr.Aman Lekhi, Sr. Advocate
                                 with Mr. Rajat Wadhwa,
                                 Advocate
                       versus

        STATE & ANR.                             ..... Respondent
                          Through:   Mr. Dayan Krishnan, ASC with
                                     Ms. Manvi Priya, Advocate
                                     Mr. Mukesh Kumar, Insp./
                                     Cyber Cell/EOW
                                     Mr. Sudhir Nandrajog, Sr.
                                     Advocate with Mr. Anurag
                                     Ahluwalia & Mr. Prashant
                                     Ghai, Advocates for R-2

        CRL.M.C.1022/2013 & Crl.M.A.3187/2013
        VIJAY GOVIND                        ..... Petitioner




Crl. M.C. No. 1635/2013                                   Page 1 of 23
                              Through:     Mr. Aman Lekhi, Sr. Advocate
                                          with Mr. Rajat Wadhwa,
                                          Advocate
                             versus

        STATE & ORS.                                  ..... Respondent
                             Through:     Mr. Dayan Krishnan, ASC with
                                          Ms. Manvi Priya, Advocate
                                          Mr. Mukesh Kumar, Insp./
                                          Cyber Cell/EOW
                                          Mr. Sudhir Nandrajog, Sr.
                                          Advocate with Mr. Anurag
                                          Ahluwalia & Mr. Prashant
                                          Ghai, Advocates for R-2

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                                      JUDGMENT

: SUNITA GUPTA, J.

1. Vide this common order, I shall dispose of Crl.M.C.

No.1635/2013, Crl.M.C. No. 1012/2013 and Crl.M.C. No. 1022/2013

as Crl.M.C. No. 1635/2013 has been filed by the State u/s 482 Cr.PC.

r/w Section 439(2) Cr.P.C. seeking setting aside of order dated 26th

February, 2013 passed by learned Additional Sessions Judge, New

Delhi whereby the respondents were granted anticipatory bail in case

FIR No. 154/2011 registered at PS Economic Offences Wing u/s

66/66C Information Technology Act, 2000 r/w Section

408/420/120B/IPC whereas Crl.M.C.No.1012/2013 and Crl.

M.C.No.1022/2013 have been filed by the complainant against

respondent No. 2 seeking the same relief. For the sake of

convenience, I shall take up Crl.M.C. No.1635/2013 filed by the State.

2.1. It is the case of the petitioner that FIR No.154/2011 came to be

registered on the complaint of Mr. Vijay Govind Saxena, General

Manager (HR), M/s. Vogueserv International Pvt. Ltd. alleging that

their ex-employees, namely, Mr. Rajesh Gosain, Mr. Alok Gupta, Mr.

Abhishek Arvind and Mr. Mohit Kothiwal had committed theft of data

by way of unauthorised access to the computer system, network and e-

mails of the company and also took wrongful possession of sensitive

and confidential information entrusted to them in their capacity. It

was further alleged that the aforesaid persons diverted business from

Vogueserv International Pvt. Ltd. to their newly formed company.

2.2. During the course of investigation, raids were conducted at the

residential as well as office premises of the Respondents. From

Respondent No.1 two hard discs, one laptop, five mobile phones,

three CDs and seven DVDs were seized. From Respondent No.2 one

hard disc, and from their office located at 101, Kundan Kutir, Ashram

Chowk two laptops and one mobile phone were seized.

2.3. The data so seized was sent to the CFSL on 27.8.2012. The

CFSL provided its report in respect of the said data on 26.1.2013. On

comparison and analysis of the data recovered from the various

exhibits sent to the CFSL, it is found that certain data belonged to the

complainant company and should not have been present in the system

of the accused persons.

2.4. It is evident that the accused persons had copied the information

through pen drive or external hard disc from the system of the

complainant company to their personal system with the objective of

using the same in their own business. The pen drive and external hard

disc through which the accused persons would have used to

unauthorizedly copy/download the data is still in the possession of

accused persons and must be recovered.

2.5. During investigation, from the e-mails recovered, it is found

that the newly incorporated company of the accused persons was

dealing with the clients of the complainant company while still in its

employment. The business of the complainant company is such that

being a trading agency it works as mediator/agent between foreign

buyers and Indian manufacturers. The complainant company as well

as the company newly incorporated by the Respondents herein inspect

for quality control the goods being manufactured by Indian vendors

on behalf of the foreign buyers. Therefore, the contacts, the data and

earned relationships become highly important.

2.6. The learned Trial Court while granting anticipatory bail to the

respondents herein overlooked the fact that a strong prima facie case

is made out during investigation and that to make further progress in

the investigation, custodial interrogation of the respondents is

necessary.

2.7. The learned Trial Court also failed to appreciate that offences

under Sections 408, 420 and 120B IPC were added only in October,

2012 and the report of the CFSL was received in January, 2013.

2.8. It is submitted that though the Respondents herein have joined

investigation, they have not fully cooperated. The Respondents herein

have failed to deposit the pen drives/hard drives for verification or

provide a satisfactory reply in regard thereto.

2.9. In light of the above, it is submitted that cancellation of bail is

necessary for the Investigating Agency to effectively conclude the

investigation. While a prima facie case is made out against the

Respondents herein during investigation, to discover the methodology

adopted by the Respondents in transferring the data to their

laptops/hard discs, custodial interrogation is necessary.

2.10. It is submitted that in a case of cyber crime custodial

interrogation is imperative as only the accused persons would be in a

position to disclose the full nature of the conspiracy. Moreover, it is

only after the report of CFSL and analysis of the data is received that

further investigation can be made. It is further submitted that in all

likelihood, the accused persons are likely to tamper with evidence.

3. The applications have been contested by the respondents by

filing separate replies.

4. I have heard Sh. Dayan Krishnan, Additional Standing Counsel

for the State, Sh. Aman Lekhi, Sr. Advocate duly assisted by Sh. Rajat

Wadhwa, Advocate for the complainant and Sh. Sudhir Nandrajog, Sr.

Advocate assisted by Mr. Anurag Ahluwalia, Advocate for the

respondents and have perused the record.

5. It is submitted by the learned Additional Standing Counsel for

the State that the State is seeking setting aside of the order granting

anticipatory bail to the respondents, inasmuch as, the learned Trial

Court has passed the impugned order without due consideration of the

submissions made by the State. Learned Trial Court failed to

appreciate that non-bailable offences were added to the FIR only in

October, 2012 and the report of the CFSL was received in January,

2013. During investigation, upon analysis of the data received from

the CFSL, it was found that the laptop and hard disk recovered from

the respondents contained unauthorized data belonging to the

complainant company. In a case involving cyber crime, it is only after

seizure, retrieval and analysis of huge amounts of data, investigation

can progress.

6. In exercise of powers u/s 482 Cr.P.C. r/w Section 439(2)

Cr.P.C., the Court has the power to set aside the order granting

anticipatory bail to correct the arbitrary exercise of discretion by the

learned Trial Court.

7. Reliance was placed on Puran vs. Rambilas, (2001) 6 SCC 338

where it was observed as under:-

"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in

Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118. In that case the Court observed as under:-

"If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under S. 439(2) to commit the accused to custody. When however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis- a-vis the High Court."

8. It was further submitted that custodial interrogation is

necessitated in cases involving Information Technology as the mode

of transfer, the extent of transfer and details of all the transferees can

only be obtained from the unauthorized transferor. The case of the

complainant is that the accused diverted huge amount of information

having commercial value from the complainant company without any

authority taking advantage of the association, the accused had with the

complainant company. Moreover, the respondents have failed to

cooperate in the investigation. Most evasive replies were received in

the interrogation which was specially conducted on the directions of

the Court. Bank Account details were not given on one pretext or the

other. It was only in August, 2013, i.e., 2 years after the first raid and

seizure that one of the respondents deposited a laptop which has been

sent for analysis. The conduct of the respondents and the difficulties

faced by the Investigating Agency during investigation necessitate

custodial interrogation of the respondents.

9. Learned senior counsel for the complainant also submitted that

while granting anticipatory bail, the learned Trial Court has ignored

the material evidence available on record and gravity and seriousness

of the offence. Furthermore, in a case of cyber crime, custodial

interrogation is imperative as only the accused would be in a position

to disclose full nature of conspiracy. Moreover, co-accused Pankaj

Johri, who was not even an employee of the complainant company,

was arrested and released on bail only after 4-5 days. Further, the

witnesses in the case are likely to be employees of the company who

can be easily influenced by the accused being former employees and

their release on bail even before the conclusion of the investigation

can adversely affect the case.

10. Reliance was placed on State vs. Anil Sharma, (1997) 7 SCC

187, where Hon'ble Supreme Court held that custodial interrogation is

qualitatively more elicitation oriented then questioning a suspect who

is well ensconced with favourable order under Section 438 of Code.

In a case like this effective interrogation of the suspected person is of

tremendous advantage in disinterring many useful information and

also material which could have been concealed. Success in such

interrogation would elude if the suspected person knows that he is

well protected and insulated by a pre-arrest bail order during the time

he is interrogated. Very often interrogation in such a condition will

reduce to a ritual.

11. Reliance was also placed on Anwari Begum vs. Sher

Mohammad & Ors., (2005) 7 SCC 326, wherein it was held that

though detailed examination of the evidence and elaborate

documentation of the merits of the case is to be avoided by the courts

while passing orders on Bail Applications, yet a court dealing with the

Bail Application should be satisfied as to whether there is prima facie

case, but exhaustive exploration of the merits of the case is not

necessary. The Court dealing with the application of Bail is required

to exercise its discretion in a judicious manner and not as a matter of

course.

12. Narendra K. Amin vs. State of Gujarat, (2008) 13 SCC 584

was also relied upon wherein a three judge bench of the Hon'ble

Supreme Court observed that when irrelevant materials have been

taken into consideration the same makes the order granting bail

vulnerable. If the order is perverse, the same can be set aside at

naught by the superior court.

13. Puran (supra) which was also relied upon by the Additional

Standing Counsel for the State for submitting that anticipatory bail

granted to the respondents is liable to be cancelled.

14. These submissions were countered by learned senior counsel

for the respondents. It was submitted that the respondents were the

employees working at the post of Merchandiser and Senior

Merchandiser of the complainant company. They wanted to leave the

complainant company and start their own business but were

threatened by the complainant company. They had to resign from the

service in the second week of July, 2011 on account of bad behaviour

of senior staff members. While doing so, they did not breach any

condition of agreement of the department. Apprehending involvement

in false case, the respondents filed complaint against the Managing

Director of the complainant company on 1st August, 2011 with PS

Gautam Budh Nagar, UP. On 19th August, 2011, the present FIR was

registered against the respondents u/s 66/66C of IT Act, at the

instance of the company. On 20th August, 2011, the police seized all

the laptops, mobile phones, hard disks, CDs, and DVDs from the

residence as well as the offices of respondents. During the whole

process of seizure of materials, respondents fully cooperated with the

investigation and did not show any kind of reluctance or

apprehension. A 'Look Out Circular' was issued against the

respondents by the Investigating Officer against which writ petitions

were filed, however, the same was dismissed by this Court as the

'Look Out Circular' issued against the respondents was discontinued

by the investigating agency. Thereafter, an anticipatory bail

application was moved before the learned Sessions Judge. However,

the same was disposed of with the observation that there was no

occasion for admitting the accused on bail as the FIR has been

registered under bailable offences. Respondent No.1 fully co-

operated and showed his intention to join the investigation on

numerous occasions whenever required by the Investigating Officer.

The complainant company filed a writ petition before this Court for

amendment of the offences in the FIR. A Civil Suit was also filed for

permanent injunction and mandatory injunction and for recovery of

money amounting to Rs.25,00,000/- only. The writ petition was

disposed of in view of the statement of Investigating Agency that

investigation is also being done after alleged offences under Section

408/420/120B/34 IPC were added.

15. It was further submitted that during the pendency of the writ

petition, various status reports were filed by the police wherein it was

categorically stated that there is not enough evidence against the

respondents. Moreover, the material which was seized was sent to

CFSL and the analysis revealed that no clear information was given

by CFSL as data cannot be extracted, hence, the material again was

sent to CFSL for analysis. Apprehending arrest, respondents filed an

application for grant of anticipatory bail before the learned Sessions

Judge. Vide an interim order, respondents were granted anticipatory

bail and were further directed to join the investigation. In pursuance

to the order, the respondents sent letter to the Investigating Officer

and to the higher ranked police officials for joining investigation.

However, no response was given by the Investigating Officer nor they

were called to join the investigation. A status report dated 12th

February, 2013 was filed. The respondents personally visited the

office of the Investigating Officer and voluntarily made themselves

available for investigation. The Investigating Officer got some

questionnaires filled by respondents but did not provide a copy of the

same despite request.

16. Another status report was filed by the Investigating Officer on

20th February, 2013 wherein it was stated that some information data

has been found on the computer systems of the respondent No. 1 and

he has copied the information on to his hard drive/pen drive, which

are yet to be recovered. In the earlier status report, there was no such

mention of hard drive or pen drive. Keeping in view the fact that all

the seizures have been made and the respondents had undertaken to

cooperate with the Investigating Agency as and when required, vide

impugned order dated 26th February, 2013, anticipatory bail was

granted to the respondents. It is submitted that respondents have fully

cooperated and joined the investigation on numerous occasions

whenever they were required by the Investigating Officer which is

fairly conceded by the petitioners in the petitions. From 30th March,

2012 to 9th February, 2013, respondents sent a total of 17 letters to

various police officials including the Investigating Officer showing

their intention to join the investigation.

17. Subsequent to the grant of anticipatory bail, 15 letters were sent

between 5th March, 2013 to 29th September, 2013 to various police

officials including the Investigating Officer pertaining to joining of

investigation by them. On four different occasions, respondents filled

the questionnaires as required by the Investigating Officer. The

respondents have never misused the concession of anticipatory bail.

There is no need for custodial interrogation as alleged. In the status

report dated 29th June, 2013, it was alleged that custodial interrogation

is required to recover the laptop from respondent No. 2 and also to

recover the data/information from respondent No. 1. Vide seizure

memo dated 2nd August, 2013, the 'Benq' laptop has already been

seized by the Investigating Officer from respondent No.2 and Bank

account details of alleged 'Spark Buying Services Pvt. Ltd.' and other

companies has been furnished to the Investigating Officer. In a case

of cyber crime, the accused person can be interrogated by the

Investigating Officer without taking him in custody. Since the entire

evidence is in the nature of documents, hence, custodial interrogation

is not required. It is further submitted that in fact the investigation is

not being conducted fairly and therefore, even writ petition has been

filed by the respondents directing the petitioners to conduct fair

investigation in the matter. As regards hard drive/pen drive, it is

submitted that neither the respondents were ever asked to deposit any

pen drive/hard drive for verification nor they are in possession of the

same. It was further submitted that it is not the case of prosecution

that there was any exclusive contract between the complainant

company and foreign buyers. The information which complainant

company claim as trade secrets are not trade secrets as the information

was readily available in the public domain and in the absence of any

patent or proprietary rights of the company over the alleged trade

secrets or confidential information, the said information cannot be

said to be trade secrets.

18. Reliance was placed on Dolat Ram & Ors. vs. State of

Haryana, (1995) 1 SCC 349 where it was held as under:-

"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking the grounds of cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."

19. Reliance was also placed on Samrendra Nath Bhattacharjee

vs. State of West Bengal & Anr. (2004) 11 SCC 165 where

cancellation of bail was sought on the ground of intimidation which

was not subsequently proved, hence order of High Court cancelling

the bail was set aside.

20. Reliance was also placed on Kamaljeet Singh vs. State of

Punjab & Anr. (2005) 7 SCC 226 and Parumal vs. State of Govt. of

NCT of Delhi, 2008 (3) JCC 1631 for submitting that co-accused

Neeaj Johri has also been granted anticipatory bail, whose

cancellation is not sought by the prosecution. On parity, there is no

ground for cancelling the anticipatory bail granted to the respondents,

as such, petitions are liable to be dismissed.

21. We have noted the submissions of learned senior counsel for

the petitioners as well as the respondents. In the present case, we are

concerned with the question as to whether the order passed by the

learned Trial Court in granting anticipatory bail to the respondents

was unjustified, illegal and perverse inasmuch as in view of Puran

(supra), this Court has the power under Section 439 (2) Cr.P.C. to set

aside an unjustified, illegal or perverse order granting bail. This is an

independent ground for cancellation as against the ground of the

accused misconducting himself.

22. The present case was registered on the complaint of Mr. Vijay

Govind Saxena, GM(HR) of the complainant company dealing in

trading/commission agency alleging that their ex employees Mr.

Rajesh Gosain, Mr. Alok Gupta, Mr. Abhishek Arvind and Mr. Mohit

Kothiwal had committed data theft by way of unauthorizedly

assessing the computer system, network and e-mails etc. of the

company and also took wrongful possession of some confidential

information from the computer system entrusted to them in their

official capacity. It is further the allegation that they diverted the

business from the complainant company to their newly owned

company, i.e., Spark Buying Services Pvt. Ltd. by way of

unauthorized access of e mail and computer network system of the

complainant company. As per the case of prosecution, Rajesh Gosain,

while in service of the complainant company, secretly started the

alleged company with other persons. Some purchase orders of the

overseas companies, which were supposed to be performed through

the complainant company were transferred to the alleged company.

23. As seen above, it is the case of respondent that FIR was

registered on 19th August, 2011. On the very next day, i.e., 20th

August, 2011, the police seized laptops, mobile phones, hard disks,

CDs, DVDs from the residence and office of respondents.

Considering the fact that seizure had already taken place, vide

impugned order dated 26th February, 2013 anticipatory bail was

granted by the Additional Sessions Judge. At the same time,

respondents were directed to join investigation. It is the case of the

respondent that from 30th March, 2012 to 9th February, 2013, as many

as 17 letters were sent by them to various police officials including

Investigating Officer to join investigation. Even after grant of

anticipatory bail as many as 15 letters were sent during the period 5 th

March, 2013 to 29th September, 2013 offering themselves for

investigation. On four different occasions, they also filled the

questionnaire as required by the Investigating Officer. It is not even

disputed by the petitioner that the respondents are not joining

investigation. It is only alleged that they are not cooperating in the

investigation which fact is disputed by the respondent by submitting

that besides filing the questionnaire given to them during

investigation, they have also provided requisite information in respect

of the bank account details of the company, namely, Spark Buying

Services Pvt. Ltd. which shows that no transactions were made in this

account. Hence no profit as alleged was made by the respondents. In

the status report dated 20th June, 2013, it was alleged that custodial

interrogation is required to recover the laptop from respondent No. 2

and to recover the data/information from respondent No. 1. As per the

seizure memo dated 2nd August, 2013 'Benq' laptop has already been

seized by the Investigating Officer from respondent No. 2, which

according to the prosecution, has been sent for analysis. Under the

circumstances, keeping in view the fact that recovery has already been

effected, respondents are not only joining investigation as and when

required but are also volunteering themselves to join investigation by

writing various letters to the Investigating Officer and senior police

officials, the impugned order dated 26.2.2013 cannot be said to be

illegal or perverse. As held in Dolat Ram's case (supra), very cogent

and overwhelming circumstances are necessary for an order directing

cancellation of bail already granted. Further in Sidharam

Satlingappa Mhetre vs. State of Maharashtra & Ors., 2011 (1) SCC

694, it was observed that where the accused has joined the

investigation and is cooperating with the Investigating Agency and is

not likely to abscond, custodial interrogation should be avoided.

24. As regards the submission that most of the witnesses are the

employees of the company, hence, there is likelihood of their being

influenced by the respondents being former employees, the

submission does not appear to have substance because the proposed

witnesses are still in the employment of the company, therefore, it is

very unlikely that they will be influenced by the former employees. In

any case, it is only a presumption of the complainant and there is

nothing on record to suggest that during the course of investigation

any such instance has come to the notice of the complainant or the

Investigating Agency. Above all, complainant has already filed civil

suit against the respondent for permanent and mandatory injunction

and recovery of money and necessary restraint order has been passed

against the respondent thereby safeguarding the interest of the

complainant. Moreover, although it is alleged that the complainant

has suffered a loss of approximately 40 crores due to acts of the

respondents but in the civil suit, relief of recovery of money is

confined to Rs.25 lacs only. Further, one of the co-accused Neeraj

Johri has also been released on anticipatory bail but neither the State

nor complainant is aggrieved by the same as they are not seeking

cancellation of his anticipatory bail.

25. Under the circumstances, neither the order of Trial Court

granting anticipatory bail can be said to be perverse nor any cogent or

overwhelming circumstances exists for cancellation of bail.

26. Before we conclude, we make it clear that the observations

made herein are for the purpose of deciding whether the Trial Court

was in any way in error in granting anticipatory bail. This order is

being passed on the basis of the material that has been brought on

record for that purpose. Needless to state, it is made clear that as and

when the trial is conducted, it will be decided on the basis of the

evidence which will be brought on record during the course of trial.

27. The petitions are accordingly dismissed. Pending applications,

if any, stand disposed of.

SUNITA GUPTA, J FEBRUARY 07, 2014 rs