Bharati H. Dangre, J.

The principle question that arise in the present Criminal Writ Petition is whether the invocation and application of the provisions of the Indian Penal Code can be sustained in the facts and circumstances of the case when the offences committed by the petitioners are also sought to be brought within the purview of the Information Technology Act, 2000, in light of the judgment of the Hon'ble Apex Court in the case of Sharat Babu Digumarti V/s. Government (NCT of Delhi), (2017) 2 SCC 18.

In order to appreciate the controversy involved in the petition it would be necessary to refer to the basic facts involved in the matter. The petitioners before us are two brothers. The petitioner No.1 is an Electronic Engineer employed as Vice President Strategy and Business Development of M/s. Bliss GVS Pharma Ltd., India, a Pharmaceuticals Company engaged in the business of manufacturing, distribution and marketing of pharmaceuticals products across the globe. The petitioner No.2 is a Graduate in Information Technology and a software developer undertaking activity of software development for use in the healthcare industry. The two petitioners are arraigned as accused in Crime No. 0346 of 2017 registered with Shahupuri Police Station on 27.08.2017. The First Information Report alleges that they have indulged themselves in offences punishable under Sections 408, 420 of the Indian Penal Code and also offences under Sections 43, 65 and 66 of the Information Technology Act, 2000. The FIR is registered on a complaint filed by one Shadab Abdul Shaikh, an employee of M/s. Manorama Infosolutions Pvt. Ltd., Kolhapur in the capacity as Human Resources Head. It is alleged in the said complaint that M/s. Manorama Infosolutions Pvt. Ltd., Kolhapur, is a company engaged in the activity of developing healthcare softwares for Hospital management and is involved in development and distribution of the said software. It is alleged that the company has engaged 171 employees. Every employee at the time of his recruitment is duty bound to submit an undertaking/bond to the company that he will not disclose any details of the work of the company, source code or any information about software to any other company while in service or after service in relation to the health care software development. The complainant who is entrusted with the supervision of the employees work is duty bound to ensure that there is no violation of the bond/undertaking given by the employees and it is alleged that while he was scrutinizing the profile of one Suraj Mahajan, it is revealed that he has developed his own software and also distributed the same. The complainant suspected theft of data and software of the company and checked the details of Suraj Mahajan and also informed the Director that Suraj Mahajan was involved in stealing software namely Cleave Track with the help of Gururaj Janardhan Nimbargi who is the Head of the company. On inquiry, it is revealed that the software was developed by the company and not by Suraj Mahajan in his personal capacity and the server access of the company was given to Suraj Mahajan as an employee of the company.

2. On the basis of the said complaint the FIR was registered and Suraj Mahajan came to be arrested. Thereafter, one Anand Sanmani was also arraigned as accused No.2 and came to be arrested in relation to the said crime. During the course of the investigation, it is revealed that M/s.Manorama Infosolutions Pvt. Ltd. had entered a deal with M/s. Bliss, in Kenya, ERP software for healthcare division operating in Kenya and it developed the said software. The demonstration in relation to the said software was given by various employees which included Anand Sanmani. The investigation further reveal that this Anand Sanmani was manipulated and he joined the petitioners who intended to sell the said software in the Continent of Africa. It is also revealed that the employees of M/s.Manorama Infosolutions Pvt. Ltd. were di