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2024 Supreme(Online)(GUJ) 16112
HIGH COURT OF GUJARAT
MR. JUSTICE M. R. MENGDEY, J
ABDUL WAHAB SHERMOHAMMAD PATHAN – Appellant
Versus
STATE OF GUJARAT – Respondent
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL - AFTER CHARGESHEET) NO. 17545 of 2024
The requirement for a website to be designated as a protected system is not necessary for charges of cyber terrorism under Section 66F of the IT Act.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 439 - Indian Penal Code - Sections 123, 120
(B) - Information Technology Act - Sections 65, 66(c), 66F(a) - Application for regular bail - Applicant arrested for offences related to cyber terrorism and conspiracy - Previous bail application dismissed due to lack of change in circumstances - Court finds prima facie evidence of intent to compromise national security. (Paras 1, 4, 5, 6, 8)
(B) Cyber Terrorism - Definition and applicability - The court held that the requirement of a website being notified as a protected system under Section 70 of the IT Act is not a pre-condition for attracting Section 66F. (Paras 6)
(C) Waging War - The court referenced the Supreme Court's interpretation that 'waging war' requires a planned operation against the state, not merely possession of arms. (Paras 7)
Facts of the case:
The applicant was arrested for creating fake websites to gather sensitive information from defense personnel, allegedly in collusion with foreign entities. The investigation revealed the use of Indian SIM cards to facilitate communication with Pakistan. (Paras 1, 5)
Findings of Court:
The court found no merit in the bail application, emphasizing the serious nature of the charges and the applicant's actions against national security. (Paras 8)
Issues: The main issues included whether the applicant's actions constituted cyber terrorism and the legal interpretation of 'waging war' under IPC. (Paras 6, 7)
Ratio Decidendi: The court reasoned that the applicant's actions posed a threat to national security, and the absence of a change in circumstances justified the dismissal of the bail application. (Paras 8)
Result: Application dismissed.
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 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 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 ins
