Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 485 PW 2022 State Vs Mahamood and ors.
CNR No.MHMM18-001163-2022
ORDER BELOW EXH.1
1. Perused record. Heard Ld. A.P.P.
Background facts -
2. The summary of the allegations in the present final report, is that
the informant company is in insurance business. The accused persons are
its past employees. They resigned from the services of the informant
company one after another and started their own company running same
business as that of informant company. Then informant company noticed
that during service with it accused persons, in violation of conditions of
service, stolen its clientele and other data and using it for their own
benefit. Therefore, informant company carried out forensic investigation,
in which said fact was confirmed.
3. On the basis of material collected informant company through its
representative lodged First Information Report against accused persons
with Cyber Police Station, West Division, Mumbai. The said offence was
registered at C. R. No. 34 of 2021, for offences punishable under Section
43 r/w. 66 of Information Technology Act, hereinafter referred as I.T.
Act, and Sections 120-B, 201 and 408 r/w. 34 of Indian Penal Code,
hereinafter referred as I.P.C.
4. Then accused persons were arrested. After initial police custody
they were released on bail. The bail was granted mainly relying of the
observations of Supreme Court, in the case of Sharat Babu Digumarti Vs.
Government of N.C.T. of Delhi (Criminal Appeal No.1222 of 2016 (Arising our of
S.L.P. (Criminal) No.7675 of 2015), and observations of our parent High
Court, in the case of Gagan Harsh Sharma Vs State of Maharashtra (2019
Cr.L.J. 1398), wherein it is laid down that where provisions of I.T. Act,
invoked, the provisions of I.P.C. can not be invoked, besides other
grounds mentioned in the bail application.
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C. C. No. 485 PW 2022 State Vs Mahamood and ors.
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The question arrived -
5. Investigation was completed and the present final report has been
filed. As stated above in view of the observations of Supreme Court, in
the case of Sharat Babu Digumarti (mentioned above), our parent High Court,
in the case of Gagan Harsh Sharma (mentioned above), laid down that where
provisions of I.T. Act, invoked, the provisions of I.P.C. can not be
invoked. Despite that Investigating Officer filed the present final
report/charge sheet contending that offences punishable under Section 43
r/w. 66 of I.T. Act, as well as offences punishable under Sections 120-B,
201 and 408 r/w. 34 of I.P.C., are made out.
6. In such a situation the question arises, whether cognizance of the
offences punishable under provisions of I.T.Act as well as I.P.C., can be
taken or not?, as the law laid down by our parent High Court in the case
of Gagan Harsh Sharma Vs State of Maharashtra (2019 Cr.L.J. 1398), is binding
on this court, wherein the allegations constituting basic facts are also
somewhat same, as that of present matter.
Submissions of parties -
7. In view of this aspect, as after filing of the charge sheet Ld.
Advocate for the accused persons appeared and brought this fact to the
notice of this court. Though accused persons have limited scope at such a
stage, Ld. Advocate within limited ambit submitted that cognizance of
offences punishable under provisions of I.T. Act as well as I.P.C. can not
be taken.
Against it, Ld. A.P.P. submitted that both the judgments referred
above are not applicable at this pre-trial stage. Those can be considered at
the time of judgment. Relying on the Section 26 of the General Clauses
Act, Ld. A.P.P. submitted that what is barred is double trial and
consequent double punishment for the same offence. Trial of several
offences of same nature in one trial and punishment for them in the same
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trial is not barred. Therefore, cognizance of the offences punishable under
both the enactments can be taken and trial is ordered to be proceeded. He
also relied on the fact that some offences punishable under I.P.C.,
particularly offence punishable under Section 201, in respect of which
charge sheet is filed, is not covered by the I.T. Act. Therefore, cognizance
needs to be taken.
Assessment of the facts and legal position -
8. The law is well settled. Taking cognizance means application of
judicial mind to the facts of the case. It is also settled that what is to be
seen while taking cognizance is prima facie case. For assessing the
evidence produced to constitute such prima facie case the material
produced need not be scrutinized in its minutest details. Material
constituting strong suspicion or reasonable grounds to proceed further are
enough to constitute prima facie case. Therefore, such orders of taking
cognizance should be short reflecting that judicial mind is applied just to
see that prima facie case is made out.
9. If we go through the material produced, the record shows that
prima facie case made out for offences punishable under Sections 120-B,
201, 408 and 420 r/w.34 of I.P.C. and Section 43 r/w.66, 72 and 75 of
I.T.Act, as well. Therefore, cognizance of both the offences can be taken.
But the observations made and law laid down by our parent High Court in
the case of Gagan Harsh (mentioned above), are absolutely binding on this
court. There is no scope of further interpretation crossing the limits of this
court, which will have an effect of disobeying the principles of law laid
down in the said matter.
10. At the same time it is also necessary to mention that as per record
the stake involved is very high, as such the allegations can be said to be
serious. The evidence collected and going to be relied by prosecution is
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technical evidence mainly based on budding jurisprudence of electronic
evidence generated through use of information technology. All the
principles of law are not yet settled. If evidence relating to one of the
main aspect constituting offence under I.P.C. is ignored there is every
possibility of causing serious prejudice to victim/informant company and
consequently prosecution as well. If such evidence is allowed, accused
are not going to be prejudiced in any way for the reasons that prosecution
is going to rely on same material produced in support of both the charges
and accused also have every opportunity to defend their case. All these
legal and factual aspects mandates that the balance needs to be maintained
between the interests of accused persons and the prosecution and the
informant company along with the principles of law.
11. As allegations constitutes both the offences, punishable under
provisions of I.T.Act as well as I.P.C., it is necessary to scrutinize
whether there is any option available so that balance of interests of all the
parties concerned can be maintained?
12. If we go through the said judgment of Gagan Harsh (mentioned above),
it shows that it is mainly based on two principles, first, that special law
prevails over general law and second, principle of double jeopardy. Both
these principles are genus of common species i.e. Rule of Double
Jeopardy, the parent provision of which is laid down in Article 20(2) of
Constitution of India, as -
Article 20(2) No person shall be prosecuted and punished for the same offence more
than once.
The applied provisions of this parent provision are laid down in Section
26 of General Clauses Act and Section 300 of Code of Criminal
Procedure. Both these provisions are as follows -
General Clause Act
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CNR No.MHMM18-001163-2022
Section 26. Where an act or omission constitutes an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished under
either or any of those enactments, but shall not be liable to be punished twice for the
same offence.
Code of Criminal Procedure
Section 300(1) A person who has once been tried by a Court of competent
jurisdiction for an offence and convicted or acquitted of such offence shall, while
such conviction or acquittal remains in force, not be liable to be tried again for the
same offence, nor on the same facts for any other offence for which a different
charge from the one made against him might have been made under sub- section (1)
of section 221, or for which he might have been convicted under sub- section
13. In context of the above provisions Section 221 of Code of Criminal
Procedure, is also very important, it provides for framing of alternative
charge, where it is doubtful what offence has been committed by accused.
It runs as –
Section 221(1) If a single act or series of acts is of such a nature that it is doubtful
which of several offences the facts which can be proved will constitute, the accused
may be charged with having committed all or any of such offences, and any number
of such charges may be tried at once; or he may be charged in the alternative with
having committed some one of the said offences.
14. If Section 300(1) and other related provisions mentioned above
read in context with each other it can be said that alternative charge can
be framed. There is no express provision in the Code of Criminal
Procedure, under which alternative cognizance can be taken, though
alternative charge can be framed. Here one must bear in mind one of the
basic principle of law that what is not expressly barred is impliedly
permissible as such alternative cognizance of offences in any matter can
be taken.
15. As stated above offences under both the punishing enactments
made out but peculiar situation arrived on account of the judgment of
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Gagan Harsh (mentioned above), as cognizance of both the offences can not
be taken. Therefore, it needs to be examined, whether in view of above
legal provisions, alternative cognizance of both the offences can be taken
and alternative charge on its basis can also be framed, so that no prejudice
can be caused to any of the parties.
16. In the catena of judgments of Supreme Court, it is now settled that
what is barred is second trial for the same charge and not the common
trial for several offences. If we go through the said judgment of Gagan
Harsh (mentioned above), it can be said that this aspect has not been
considered by our parent High Court in it. If we considered the
observations made in the light of this principle, that what is barred is
second trial for the same charge and not the common trial for several
offences, the observations in the judgment of Gagan Harsh (mentioned
above), can be distinguished on this point and it can be interpreted in such
a way that common proceeding of both the offences punishable under
both provisions at pre-trial stage is barred and common trial of charges
framed under common heads for both the offences is barred. However,
the common trial under different heads of charge framed in the
alternative, is not barred.
17. Therefore, in the interest of justice cognizance of the matter needs
to be taken in the alternative. So also, directions to frame the charge in the
alternative, along with permission to lead evidence on both the charges,
also needs to be passed. Accordingly, in the interest of justice following
order -
Order
a. Prima facie case made out for offences punishable under Sections
120-B, 201, 408 and 420 r/w.34 of Indian Penal Code and Section 43
r/w.66, 72 and 75 of Information Technology Act.
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b. Cognizance taken of offences punishable under Sections 43 r/w.66,
72 and 75 of Information Technology Act.
c. In the alternative, cognizance of offences punishable under
Sections 120-B, 201, 408 and 420 r/w.34 of Indian Penal Code, also
taken.
d. It is clarified that the main charge will be framed in respect of
offences punishable under Sections 43 r/w.66, 72 and 75 of Information
Technology Act and alternative charge is also ordered to be framed for
offences punishable under Sections 120-B, 201, 408 and 420 r/w.34 of
Indian Penal Code.
e. Permission granted to lead evidence to both the parties on the main
charge as well as on the alternative, at one and same trial.
f. Issue process against the accused persons for the above referred
offences.
MUMBAI (KOMALSING RAJPUT)
DATE – 02.08.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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