Punjab and Haryana High Court: In the case where the petitioner, accused of facilitating cybercrime by activating and supplying SIM cards to co-accused involved in defrauding the complainant, had sought regular bail under Section 439 of the Criminal Procedure Code, 1973, Anoop Chitkara, J., has stated that given the serious nature of allegations, it was not a case for interim bail and that the massive number of SIM cards points towards the petitioner’s involvement in cybercrime and further investigation regarding usage of such SIM cards within the territory of the State of Haryana should be carried out
The Court also questioned why did the Ministry of Telecommunication permit individuals, firms, or companies to acquire multiple prepaid SIM cards under their name. Moreover, since the Aadhar Card was exclusively linked to a single SIM card for OTP generation, there was no justification for the issuance of multiple prepaid SIM cards.
Background
On 30-08-2023, an application was received on National Cybercrime Reporting Portal, wherein the complainant stated that on 27-08-2023, he got a message on WhatsApp from a number, stating to earn money while sitting at home. Accordingly, he had a chat with a subscriber on that number and that person asked him to create a telegram account. Following his instructions, he created his telegram account and clicked on a link sent by that person. The site asked him to complete the task and upon completion, it joined him in the ‘Kiwi group 710’. Almost 28 persons were members of that group. On 28-07-2023, the accused asked him to transfer Rs. 10,000 and accordingly he transferred the amount. Thereafter, the accused transferred Rs. 10,900 and a bonus of Rs. 6,800 in his account. In this transaction, they repaid the amount to the complainant, therefore he reposed faith in them.
Subsequently, they asked the complainant to deposit Rs. 8,09,469 by different transactions but did not return the same to him. He kept on calling the mobile numbers but did not get any answer. Thereafter, he realized that he had been defrauded and accordingly FIR was registered under Section 420, 120-B and 201 of the Penal Code, 1860.
Analysis, Law, and Decision
The Court noted the affidavit filed by the State, wherein it was stated that petitioner had obtained thirty-five prepaid SIM cards in his name. The Court opined that after perusal of the affidavits, concerns arose regarding the petitioner’s acquisition of a significant quantity of prepaid SIM numbers and the techniques that petitioner deployed by taking advantages from the vulnerabilities emerging from the unrestricted issuance of multiple SIM numbers.
The Court opined that in India, the pervasive threat of cybercrime had led majority of people to refrain from answering calls from unfamiliar numbers, even when such communication might be necessary. This fear extends to the use of Internet and mobile banking services, as individuals sought to safeguard themselves against potential cyber fraud. However, this poses challenge, as individuals also strive to keep pace with rapid advancements in technology and global connectivity. Further, proficiency in technical knowledge or academic attainment did not necessarily confer immunity against cyber threats, as cybercriminals often possess superior skills and tactics. The Court opined that the cybercriminal activities had led to a global tarnishing of India’s reputation, particularly through fraudulent operations conducted from Indian soil, targeting people overseas. These encompass a range of scams such as counterfeit tech support services, fraudulent gift card schemes, insurance fraud, courier frauds, and the unlawful conversion of cyber proceeds into cryptocurrencies. Notably, a considerable proportion of these illicit endeavours were orchestrated via mobile devices.
The Court stated that in the present case as per the affidavit, thirty-five SIM cards were issued in the petitioner’s name, out of which twelve SIM cards were still active. Issuance of massive number of SIM cards to petitioner was a matter of record, and the data did not lie. Further, the Court stated that why did the Ministry of Telecommunication permit individuals, firms, or companies to acquire multiple prepaid SIM cards under their name and since the Aadhar Card was exclusively linked to a single SIM card for OTP generation, there was no justification for the issuance of multiple prepaid SIM cards.
The Court stated that regarding the use of mobile phones by minors, their parents and caretakers could be given an option to obtain prepaid SIM cards associated with their Aadhar Cards. Similarly, foreign nationals should be entitled to acquire a single prepaid SIM card, after verification and validation of their passports through OTP. Those individuals seeking additional SIM cards could always opt for post-paid numbers after verification and any misuse of these services should result in temporary disconnection.
The Court opined that the firms, companies and organization should be prohibited from retaining prepaid SIM cards, instead they should acquire postpaid numbers. The Central Government had the authority to limit individuals travelling to India to only one prepaid Indian SIM card linked with either a Passport or Aadhar card, while unrestricted post-paid numbers remain available. Typically, the individual whose number was associated with post-paid services settles the bill through digital wallets, creating a financial trail that connected them to the phone number. The Court stated that as per the reports, cybercrime predominantly takes place through prepaid SIM cards rather than post-paid SIM cards or landlines. As the executive had largely been unsuccessful in curbing cybercrime, one potential solution could be limiting the maximum number of prepaid SIM cards per individual. Further, these prepaid SIM cards could be programmed to automatically disconnect after the individual’s death was recorded in official records.
The Court opined that this limitation on the possession of multiple prepaid SIM cards, would not inherently infringe upon any fundamental or statutory rights, as the individuals retain the option to acquire post-paid SIM cards and landlines issued by companies after verification. Restricting pre-paid SIM cards to one per individual was likely to mitigate cybercrime. Therefore, if the Ministry of Telecommunication implemented such a restriction, it could effectively curb cybercrime incidents, thereby reducing financial fraud and the exploitation of individuals.
The Court opined that to address the issue of call routing via international cellular networks and the internet, proactive measures involve default blocking of incoming calls bearing international country calling codes, with an opt-in provision available at the subscriber’s discretion. This strategy guarantees that subscribers exclusively receive calls pertinent to their geographical context.
Considering the magnitude of cybercrime and its propensity, the Court stated that Union of India should be arraigned as Respondent 2 and Union of India, Ministry of Telecommunication, Government of India through Secretary was added as party Respondent in the petition.
However, regarding petitioner’s bail, the Court opined that the massive number of SIM cards points towards the petitioner’s involvement in cybercrime and further investigation regarding usage of such SIM cards within the territory of the State of Haryana should be carried out. Given the serious nature of allegations, the Court stated that it was not a case for interim bail.
The matter would next be listed on 01-06-2024.
[Sumit Nandwani v. State of Haryana, 2024 SCC OnLine P&H 4293, Order dated 29-05-2024]
Advocates who appeared in this case :
For the Petitioner: Vikas Arora, Advocate;
For the Respondent: Rajat Gautam, Addl. A.G., Haryana.
For the Complainant: Sandeep Lather, Advocate.
Buy Penal Code, 1860 HERE
