IMPORTANT POINTS
(1) If the petitioner in a Bail Application relies on any particular fact not borne out by the Case Diary, necessarily, it has to be pleaded by him. It cannot be said that the accused is entitled to put forward anything on facts in the arguments without any supporting data on record.
(2) Exceptional circumstances may arise in which exercise of the power by the Sessions Court or the High Court under Section 438 may be warranted and the fact that the charge sheet was filed in the case would not be a bar to entertain such an application under S.438 of the Code of Criminal Procedure.
(3) In granting anticipatory bail in a State where the applicant is sought to be arrested, the High Court naturally has to restrict the relief

JUDGMENT

K.T. Sankaran, J.—This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, filed by Dr. K.A. Koshy and Dr. Serena, who are two accused persons among the accused in Crime No.30 of 2010 of Rajpura City Police Station, Patiala District, Punjab.

2. The petitioners apprehend arrest in Crime No.30 of 2010, where the offences alleged, going by Annexure A First Information Report, are under Section 65 and 66(1) and (2) of the Information Technology Act, 2000. After hearing all the counsel and the learned Additional Advocate General of the State of Punjab, it is fairly clear that the offences alleged against the accused include the offences under Sections 419 and 420 of the Indian Penal Code as well.

3. In the Bail Application, the offences under Sections 419 and 420 of the Indian Penal Code were not mentioned. When the Bail Application came up for admission, the undertaking made by the learned Public Prosecutor appearing for respondents 1 and 3 that the petitioners will not be arrested for a period of two weeks was recorded and urgent notice was ordered to respondent No.2, the S.I. of Police, Rajpura City Police Station, Patiala, Punjab. It is brought to my notice that the offence under Sections 65 and 66 of the Information Technology Act is bailable in view of Section 77B of the Information Technology Act. Section 77B was introduced by the Information Technology (Amendment) Act 2008 (Act 10 of 2009). Section 77B provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offence punishable with imprisonment of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable. The learned counsel for the petitioners submitted that he inadvertently omitted to notice Section 77B of the Information Technology Act. However, the learned counsel for the petitioners submitted that as non-bailable offences under Sections 419 and 420 of the Indian Penal Code are also involved, though the petitioners were not aware of the same and though it was not mentioned in the Bail Application, the interim order could be legally sustained and the Bail Application could be maintained.

4. From Annexure A FIR and also from the affidavit sworn to by the authorised representative of the de facto complainant Company, it is seen that one of the offences alleged against the accused is under Section 66(1) and (2) of the Information Technology Act. Section 66 of the Information Technology Act was substituted by Act 10 of 2009. After the amendment, Section 66 does not contain sub-sections (1) and (2).

5. The gist of the prosecution case is the following: The de facto complainant, M/s. Jay Polychem (India) Limited, a company registered under the Companies Act, 1956, having its Corporate office at D-143, Defence Colony, New Delhi, is primarily engaged in the business of trading and distribution of petrochemicals in India and overseas. The Company has a foreign clientele. The Company has a website, namely,

“www . jaypolychem . com”. On 30.11.2009, one of the Directors of the Company noticed a website under the name and style “www .jaypolychem. org” containing defamatory and malicious contents against the Company and its Directors. That web site was neither created nor set up by the Company. It is alleged that the same was set up by Samdeep Mohan Varghese @ Sam, a disgruntled and dismissed employee of the Company, in conspiracy with Amardeep Singh @ Amy, who was also an employee of the Company and certain other persons such as Preeti and Charanjeet Singh @ Channi and the sister and brother-in-law of Sam, who are based in Cochin. They did so with a view to cause wrongful loss to the Company and wrongful gain to them. They did so as a result of the collusion and conspiracy among them. It is alleged that the accused persons sent various emails from fake email accounts to many of the customers of the Company. The said defamatory emails wer