Bombay High Court: In the present case, an application was filed in terms of Section 389(1)1 of the Criminal Procedure Code, 1973, seeking appellant’s suspension of execution of sentence and for enlargement on bail during pendency of appeal. Appellant was charged for the offences punishable under Section 66-F of the Information Technology Act, 2000 (‘the IT Act’); and Sections 3(1)(c), 5(1)(a), 5(1)(b), 5(1)(c), 5(1)(d) and 5(3) of the Official Secrets Act, 1923 (‘the 1923 Act’) registered with ATS Uttar Pradesh, Lucknow.
The Division Bench of Vinay Joshi and Vrushali V. Joshi, JJ., opined that prima facie, it was evident that though appellant was not authorized to copy all secret, restricted, and classified data, he copied the secret information/files in his personal laptop, and made it vulnerable to unknown malware links, exposing crucial information to the enemies. Thus, after considering the seriousness of the crime, nature of evidence and its social impact, the Court held that it was not inclined to accept appellant’s application for suspension of sentence and grant him bail.
Background
Appellant joined BRAHMOS Aerospace Private Limited, Nagpur (‘BAPL’) as an Executive Trainee and then held various posts in the offices of BAPL at Hyderabad and Nagpur. It was stated that appellant while working on various posts at BAPL, Hyderabad and Nagpur, had unauthorizedly collected the secret, restricted classified data, sensitive documents, copied it secretly on his personal devise from the official computer and retained the same in his personal laptop and hard disk. Appellant was in contact with various foreign agents through social media applications and facilitated the leak of the secret, restricted sensitive prohibited information relating to the defence, to the foreign agents which was prejudicial/harmful to the safety and security of the Nation. It was submitted that appellant was in contact with the fictitious Facebook accounts which were operated from Islamabad, Pakistan and appellant downloaded various applications sent by a person through her LinkedIn account and facilitated foreign buyers to have access to the secret, sensitive information relating to BRAHMOS Missiles.
The Trial Court sentenced appellant to undergo life imprisonment for the offence punishable under Section 66-F of the IT Act; to undergo rigorous imprisonment for 14 years for the offence punishable under Section 3(1)(c) of the 1923 Act and to undergo rigorous imprisonment for 3 years and pay fine of Rs 3000 for the offence punishable under Section 5(1)(a), 5(1)(b), 5(1)(c), 5(1)(d) and 5(3) of the 1923 Act and all sentences were directed to run concurrently.
Analysis, Law, and Decision
The Court stated that appellant during his working as a System Engineer with BAPL had access to the office computers, from where he had copied classified and secret data on his personal digital device and saved the data on his personal laptop. The Court noted that appellant was B.Tech in Mechanical Branch, having sufficient understanding about the use of social media, electronic gadgets etc. and was dealing with sensitive files and was fully aware about various circulars issued by the Ministry of Defence, DRDO regarding the confidentiality of the classified information and he had also given an undertaking to maintain secrecy.
The Court opined that prima facie, it was evident that appellant had copied the secret information/ files in his personal laptop and had accepted the friend request on Facebook, which was created in Pakistan. Appellant had a chat with one girl on her LinkedIn account without knowing her identity and despite restrictions, he shared his biodata to the said girl and more particularly, he installed three links in his laptop wherein secret and restricted classified information was stored. He also installed updated version of the links which were operated from Pakistan and the business record of the LinkedIn account, with whom appellant had a chat with, disclosed that they were trying to contact various officials working/retired from the defence establishment throughout the Country. The FSL report indicated that the data available on the files was copied, though appellant was not authorized to copy all secret, restricted, and classified data and he made it vulnerable to unknown malware links, exposing crucial information to the enemies.
The forensic report indicated that the links already installed in the appellant’s laptop remained active and could share all the data to cloud base server. During the investigation, police found a total of 19 files which were titled as ‘secret and restricted files’ and out of them, 16 files were titled as ‘secret files’ and 3 files were titled as ‘restricted files’.
The Court, while dealing with the case of suspension, relied on Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123 and opined that the present case was certainly not a case to form a prima facie opinion that appellant had fair chances of success in appeal. The Court opined that the issue in the present case relates to security and safety of the Country, which had to be seriously viewed, and the impact of crime might pose a serious threat to the National security.
The Court opined that when the question of National security and safety arises, it was quite serious than the cases of gruesome murder and in the present circumstances, the Court was not prepared to risk the National security and safety. The Court also opined that the the Trial Court after appreciation of the entire material had recorded a finding of guilt and on prima facie assessment, there was no perversity or glaring error committed by the trial Court while reaching to the conclusion.
Thus, after considering the seriousness of the crime, nature of evidence and its social impact, the Court held that it was not inclined to accede appellant’s urge for suspension of sentence and grant him bail. The Court rejected the present application and stated that no case was made out to exercise its judicial discretion in suspending the execution of sentence.
[Nishant Pradeep Agrawal v. Anti-Terrorist Squad, Lucknow, 2024 SCC OnLine Bom 2781, decided on 23-08-2024]
Advocates who appeared in this case :
For the Appellant: S. Dave, Senior Advocate with C.B. Barve, Advocate
For the Respondent: A.B. Badar, APP
Buy Code of Criminal Procedure, 1973 HERE
1. Corresponding Section 430 of the Nagarik Suraksha Sanhita, 2023
