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2021 Supreme(Online)(KER) 578
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 23RD DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 CRL.MC NO. 5578 OF 2021 CRIME NO. 543/2021 OF CUSBA POLICE STATION, KOZHIKODE PETITIONER/ACCUSED NO. 4:
ABDUL GAFOOR, AGED 44 YEARS S/O.ABDUL MAJEED, PANDIKASALAKANDI HOUSE, BEYPORE P.O, KOZHIKODE DISTRICT.
BY ADV. BABU S. NAIR RESPONDENTS/STATE & COMPLAINANT:
1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN 682 031.
2 THE STATION HOUSE OFFICER, CUSBA POLICE STATION, KOZHIKKODE DISTRICT, PIN 673 001.
BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR SRI.SAJJU.S., SENIOR GOVERNMENT PLEADER SHRI.P.NARAYANAN, ADDITIONAL PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.12.2021, ALONG WITH Crl.M.C.5580/2021 AND CONNECTED CASES, THE COURT ON 23.12.2021 PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 23RD DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 CRL.MC NO. 5580 OF 2021 CRIME NO. 542/2021 OF CUSBA POLICE STATION, KOZHIKODE PETITIONER/ACCUSED NO. 4:
ABDUL GAFOOR, AGED 44 YEARS S/O.ABDUL MAJEED, PANDIKASALAKANDI HOUSE, BEYPORE P.O, KOZHIKODE DISTRICT.
BY ADV. BABU S. NAIR RESPONDENTS/STATE & COMPLAINANT:
1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN 682 031.
2 THE STATION HOUSE OFFICER, CUSBA POLICE STATION, KOZHIKKODE DISTRICT, PIN 673 001.
BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR SRI.SAJJU.S., SENIOR GOVERNMENT PLEADER SHRI.P.NARAYANAN, ADDITIONAL PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.12.2021, ALONG WITH Crl.M.C.5578/2021 AND CONNECTED CASES, THE COURT ON 23.12.2021 PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 23RD DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 CRL.MC NO. 5581 OF 2021 CRIME NO. 320/2021 OF NALLALAM POLICE STATION, KOZHIKODE PETITIONER/ACCUSED NO. 4:
ABDUL GAFOOR, AGED 44 YEARS S/O.ABDUL MAJEED, PANDIKASALAKANDI HOUSE, BEYPORE P.O, KOZHIKODE DISTRICT.
BY ADV. BABU S. NAIR RESPONDENTS/STATE & COMPLAINANT:
1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN 682 031.
2 THE STATION HOUSE OFFICER, NALLALAM POLICE STATION, KOZHIKKODE DISTRICT, PIN 673 027.
BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR SRI.SAJJU.S., SENIOR GOVERNMENT PLEADER SHRI.P.NARAYANAN, ADDITIONAL PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.12.2021, ALONG WITH Crl.M.C.5578/2021 AND CONNECTED CASES, THE COURT ON 23.12.2021 THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 23RD DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 CRL.MC NO. 5583 OF 2021 CRIME NO. 539/2021 OF CUSBA POLICE STATION, KOZHIKODE PETITIONER/ACCUSED NO. 4:
ABDUL GAFOOR, AGED 44 YEARS S/O.ABDUL MAJEED, PANDIKASALAKANDI HOUSE, BEYPORE P.O, KOZHIKODE DISTRICT.
BY ADV. BABU S. NAIR RESPONDENTS/STATE & COMPLAINANT:
1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN 682 031.
2 THE STATION HOUSE OFFICER, CUSBA POLICE STATION, KOZHIKKODE DISTRICT, PIN 673 001.
BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR SRI.SAJJU.S., SENIOR GOVERNMENT PLEADER SHRI.P.NARAYANAN, ADDITIONAL PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.12.2021, ALONG WITH Crl.M.C.5578/2021 AND CONNECTED CASES, THE COURT ON 23.12.2021 PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 23RD DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 CRL.MC NO. 5589 OF 2021 CRIME NO. 540/2021 OF CUSBA POLICE STATION, KOZHIKODE PETITIONER/ACCUSED NO. 4:
ABDUL GAFOOR, AGED 44 YEARS S/O.ABDUL MAJEED, PANDIKASALAKANDI HOUSE, BEYPORE P.O, KOZHIKODE DISTRICT.
BY ADV. BABU S. NAIR RESPONDENTS/STATE & COMPLAINANT:
1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN 682 031.
2 THE STATION HOUSE OFFICER, CUSBA POLICE STATION, KOZHIKKODE DISTRICT, PIN 673 001.
BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR SRI.SAJJU.S., SENIOR GOVERNMENT PLEADER SHRI.P.NARAYANAN, ADDITIONAL PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.12.2021, ALONG WITH Crl.M.C.5578/2021 AND CONNECTED CASES, THE COURT ON 23.12.2021 PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 23RD DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 CRL.MC NO. 5595 OF 2021 CRIME NO. 541/2021 OF CUSBA POLICE STATION, KOZHIKODE PETITIONER/ACCUSED NO. 4:
ABDUL GAFOOR, AGED 44 YEARS S/O.ABDUL MAJEED, PANDIKASALAKANDI HOUSE, BEYPORE P.O, KOZHIKODE DISTRICT.
BY ADV. BABU S. NAIR RESPONDENTS/STATE & COMPLAINANT:
1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN 682 031.
2 THE STATION HOUSE OFFICER, CUSBA POLICE STATION, KOZHIKKODE DISTRICT, PIN 673 001.
BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR SRI.SAJJU.S., SENIOR GOVERNMENT PLEADER SHRI.P.NARAYANAN, ADDITIONAL PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
07.12.2021, ALONG WITH Crl.M.C.5578/2021 AND CONNECTED CASES, THE COURT ON 23.12.2021 PASSED THE FOLLOWING:
['BABU S NAIR', 'PUBLIC PROSECUTOR', '', 'SHRI P NARAYANAN', 'ADDL PUBLIC PROSECUTOR', 'SHRI SAJJU S', 'SENIOR G P', 'GOVERNMENT PLEADER']
ORDER
These are Miscellaneous cases filed under Section 482 of the Code of Criminal Procedure seeking to quash Crime Nos. 543/2021 and 542/2021, both of Kasaba police station, 320/2021 of Nallalam police station, 539/2021, 540/2021 and 541/2021 of Kasaba police station in Kozhikode city respectively. Petitioner is the fourth accused in all these crimes. Since the parties and allegations are the same, all these cases were heard together and are disposed of by this common order.
2. Originally, all these crimes were registered alleging offences under Sections 4 read with 20 of the Indian Telegraph Act, Sections 3, 6(1), 6(1A) of the Indian Wireless Telegraphy Act and Section 420 of the Indian Penal Code. All these crimes were registered on 02.07.2021 alleging cause of action on 01.07.2021. The allegation is that on 01.07.2021, on various times the petitioner and others were found running parallel telephone exchanges in six different locations. The mode of operation is said to be that the accused persons were found using multiple broad band connections and intentionally converted international phone calls and other phone calls by terminating those calls and bypassed them to local calls, with the help of illegal call routing Gateway devices, by inserting pre-activated SIM cards, without knowledge or consent of the SIM card owners, and thus conducted illegal and fraudulent activities to acquire unlawful gain with dishonest intention, by which they cheated various telecom service providers in India, accessed, tampered, altered and diminished the value of telecommunication network of the country and thereby caused huge monitory loss to the Government and the service providers by installing parallel telephone exchanges at different locations in Kozhikode. According to the petitioner, except Section 420 of the IPC, all offences are bailable, since they attract either fine only or imprisonment upto three years.
Elements of Section 420 of the IPC are not attracted at all; however Section 420 has been incorporated purposefully with the intention of making the offence non-bailable. So, the petitioner contends that incorporation of Section 420 of the IPC in the crimes is per se illegal, arbitrary, with the intention to cause intense harassment to the petitioner which is gross abuse of process of the court and therefore, sought to be quashed.
3. During the course of investigation, the learned Senior Public Prosecutor submitted that apart from the above stated offences, offence under Section 66F of the Information Technology Act, for short the I.T. Act, also has been incorporated. Then an amendment was brought to the Crl. M.C.s and now the petitions are for quashing the offences under Section 420 of the IPC and Section 66F of the I.T. Act in the above crimes. All these cases are being investigated by the Assistant Commissioner of Police, District C Branch, Kozhikode city. The Assistant Commissioner of Police, District C Branch filed a statement of facts.
4. According to him, during the course of investigation, the Additional Director General of Department of Telecommunication and the AGM of BSNL inspected the SIM boxes and issued separate certificates which form evidence in each case. They testified that the use of seized equipments from the possession of the accused is illegal, that they were operating the gadgets without taking ILD licence from the DoT that such setups cause 8% revenue loss to the licensed ILDOs and the GoL and Government of India has lost one time entry fee of Rs. 2.5 crores towards ILDO licence in each case. That such setups pose security threat to the Nation as the calls switched through such setups cannot be traced and are beyond the scope of lawful interception. Similarly, such SIM cards used in the SIM boxes by the accused persons in the illegal installations were procured from different states, Odisha, West Bengal and Jharkand. Fake documents were submitted to the service providers to acquire the same. The SIM cards were
