Gujarat High Court
Abdul Wahab Shermohammad Pathan vs State Of Gujarat on 9 September, 2024
NEUTRAL CITATION
R/CR.MA/17545/2024 ORDER DATED: 09/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 17545 of 2024
==========================================================
ABDUL WAHAB SHERMOHAMMAD PATHAN
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR RAVIRAJSINGH H CHOUDHARY(10037) for the Applicant(s) No. 1
MR. AYUSH S JAIN(16666) for the Applicant(s) No. 1
MR. J.K.SHAH, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 09/09/2024
ORAL ORDER
1. The Applicant has filed this Application under Section 439 of the Code
of Criminal Procedure for enlarging the Applicant on Regular Bail in
connection with FIR being C.R. No. 11191011220118/2022 registered with
DCB Police Station, Ahmedabad for the offences under Sections 123, 120(B)
of the Indian Penal Code and Sections 65, 66(c), 66F(a) of the Information &
Technology Act.
2. Heard learned Advocate Mr. Ravirajsingh H. Choudhary appearing for
the Applicant and learned APP Mr. J.K.Shah for the Respondent - State.
3. Learned Advocate for the Applicant has submitted that the Applicant
has been arrested in connection with the present offence on 27.09.2022 and
since then the Applicant is in custody. The trial of the offence has not
progressed any further after the earlier bail application filed by the Applicant
had been dismsised by this Court. He has further submitted that the Applicant
has good reputation in the society and no useful purpose would be served by
keeping the applicant in jail for indefinite period. It is further contended that
NEUTRAL CITATION
R/CR.MA/17545/2024 ORDER DATED: 09/09/2024
undefined
the applicant is ready and willing to abide by all the conditions that may be
imposed by this Court if released on bail.
4. Per contra, learned APP has opposed the present application for grant of
regular bail contending that this is a successive bail application after the earlier
bail application being Criminal Miscellaneous Application No. 11942 of 2023
having been dismsised by this Court vide order dated 27.10.2023 and thereafter
there is no change in any circumstance. Learned APP has therefore submitted
that looking to the nature of offence, this Court may not exercise the discretion
in favour of the applicant and the Application may be dismissed.
5. Heard learned Advocates for the parties and perused the record. At the
outset it is required to be noted that the Applicant had earlier preferred
Criminal Miscellaneous Application 11942 of 2023 which was dismissed by
this Court with the following observations:
"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
NEUTRAL CITATION
R/CR.MA/17545/2024 ORDER DATED: 09/09/2024
undefined
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 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.
NEUTRAL CITATION
R/CR.MA/17545/2024 ORDER DATED: 09/09/2024
undefined
6. Learned advocate for the applicant contended that the web-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:-
"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
NEUTRAL CITATION
R/CR.MA/17545/2024 ORDER DATED: 09/09/2024
undefined
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."
6. The aforesaid order passed by this Court was carried before the Hon'ble
Apex Court by Special Leave Petition (Criminal) Diary No(s). 19416 of 2024
which had been dismissed by the Hon'ble Apex Court vide order dated
8.05.2024. Thus the order dated 27.10.2023 passed by this Court is confirmed
by the Hon'ble Apex Court. The learned Advocate for the Applicant fails to
point out any change in circumstances after the earlier bail application filed by
the Applicant came to be dismissed by this Court.
7. Considering the aforesaid aspects, the Application is dismissed.
(M. R. MENGDEY,J)
J.N.W / 13
