In cyber crime cases involving software theft, anticipatory bail is typically denied to facilitate necessary custodial interrogation.

JAISHREE THAKUR, J.

Crl. Misc. 29553 and 30630 of 2020 Crl. Misc. 7740 of 2021 Heard.

The applications are allowed and reports and the documents, as prayed for, are taken on record.

The applications stand disposed of.

Main case

1. The petitioners herein seek anticipatory bail in FIR No. 29 dated 20.10.2020 registered under Sections 406, 408, 379, 381, 120-B/34 of the Indian Penal Code and Sections 43, 66, 66-B of the I.T. Act, 2000 at Police Station Punjab State Cyber Crime, District Mohali.

2. Brief facts, as culled out from the FIR, are that M/s TCY Learning Solutions Private Limited is leader in the field of education technology and test preparation including classroom and online coaching. The company has been in the business for more than a decade and had developed its own software for imparting education. Petitioner No.1 had joined the Company in February, 2015 as Deputy Manager Marketing and subsequently resigned to set up another company along with Jagjit Singh (petitioner No.2) and one Rupinder Singh in the year 2018 and formed a Company in the name of M/s Exoways Web Technologies Pvt. Ltd. That there was leakage of its software. The complainant got to know from the market that a company under the brand name of “Fourmodules.in/Fourmodules.com” was providing software with similar look and use as that of the complainant. Therefore, the complainant in order to check theft from the employees created a fake client data which had fake E-mail Ids. The said data was posted on the server of the company and its access was open to the employees of the Company. The complainant was stunned when it received a promotional mail from Fourmodules.in/Fourmodules.com on an email ID which was fake and intentionally added in the fake client data which was posted on server of the company. The said Email ID was not used at any other place. It was created to find about the leakage in the complainant's company. The said data/email ID was posted on the server of the company and its access was open only to select few and accused No. 1 (Rahul Nagpal) was one of them. That the complainant investigated and found out that the software used by accused no. 3 to 5 with others is based on the Source Codes of the complainant's software (as taken from FIR).

3. On coming to know that the web applications used by the accused were identical to the same of the files of the complainant— company, a report was obtained from M/s Webrosoft Solution Pvt. Ltd., which compared the files of the complainant with the Fourmodules.in/Fourmodules.com. As per report submitted, the material of Fourmodules.in/Fourmodules.com is similar to that of the complainant— company. On the complaint so received from the complainant—company, investigation was conducted and thus the above said FIR came to be registered.

4. Mr. D.N. Ganeriwala, learned counsel appearing on behalf of the petitioners herein raises a three-fold arguments. It is submitted that the investigation is not being conducted by a police officer as per Section 78 of the Information Technology Act, 2000 as the investigation is to be done by a police officer not lower than the rank of Inspector, whereas the FIR has been registered at the behest of a Sub-Inspector. It is argued that there is a report of Stellar Data Solutions Pvt. Ltd. Dated 1.12.2020 (Annexure P/8) regarding analysis of WEBROSOFT's report relied by the complainant- company and the conclusion in the said report is “The aforesaid 10 images are open-source and freely available on the internet. Anyone can use/edit/modify these images since they are without copyright of the original author. Therefore, solely on the basis of these 10 images which are open-source and freely available on the internet cannot be the basis to arrive at a conclusion that 'complete website/web application has been copied.”

5. It is also submitted that the FIR would not be maintainable in the light of the fact that the complainant—company has already filed a complaint, which is pending in the c