The Bombay High Court (Nagpur Bench) has held that where the uncontroverted allegations made in the FIR do not disclose the commission of any offence and make out a case against the accused, the proceedings can be quashed. The Court therefore quashed the First Information Report and consequent Charge-sheet to the extent of the offence punishable under Section 3(1)(c) of the Official Secrets Act, 1923, as the allegations did not constitute an offence under the said Act.
Since the spot of the incident, i.e., the office of the complainant company, is not a prohibited place, and by no stretch of imagination can the recording of the said calls be considered an act constituting an offence of spying or an act prejudicial to the safety, sovereignty, or integrity of India, added the Court.
However, the Court directed that the prosecution would continue against the applicant as far as the offences under Sections 66 and 66(B) of the Information Technology Act are concerned, as the allegations prima-facie established an offence under Section 43(b) read with Section 66 of the Information Technology Act.
A Single Judge Bench of Justice Urmila Joshi Phalke observed that Section 66 of the Information Technology Act makes it a crime to misuse a computer or other electronic device if done with dishonest intention, specifically referring to acts listed in Section 43, such as downloading, copying, or extracting data without permission of the owner or person in-charge.
The Bench found that the applicant was only assigned the duty to connect the conference call but recorded the communication and shared it with an employee of another department without permission, which falls within the purview of Section 43(b) of the Information Technology Act. Thus, the Bench noted that dishonest intention can be prima-facie inferred from the circumstance that the applicant shared the said information with a person working in another department. It held that merely because the Investigating Agency applied the wrong section by mentioning Section 66(B) instead of Section 66 is not sufficient to quash the FIR against the applicant.
Further, the Bench examined the Maharashtra Metro Rail Corporations Limited Rules, specifically Rule 11 (Unauthorized communication of information), Rule 28 (Ethical Conduct), and Rule 34 (Integrity of Data Furnished), and emphasised that the applicant’s actions constituted not only misconduct and unethical conduct but also an unauthorized communication of departmental information directly violating Rule 11.
Regarding the charge under Section 3(1)(c) of the Official Secrets Act, 1923, the Bench observed that Section 3 deals with penalties for spying in the context of a “prohibited place” as defined under Section 2(8) of the Act. It noted that the spot of the incident, i.e., the office of the complainant company, is not a prohibited place, and by no stretch of imagination can the recording of the said calls be considered an act constituting an offence of spying or an act prejudicial to the safety, sovereignty, or integrity of India. The Bench therefore concluded that the invocation of Section 3 of the Official Secrets Act was done under a misconception by the Investigating Agency.
Briefly, the applicant, Pravin Shyamrao Samarth, was employed as an Assistant Manager at Maharashtra Metro Corporation Limited, assigned with the duty to connect conference calls between the Managing Director and other Directors via the intercom system in the control room. In July 2019, the Director (Finance) received an audio recording clip containing a conversation between Brijesh Dixit and Project Director Mahesh Kumar.
Upon inquiry, it was disclosed that the applicant, on the request of Vishwaranjan Beora (who had inter-departmental disputes), recorded the said conference calls and shared the information with him. The Cyber Forensic Expert report confirmed the presence of call recordings between the applicant and Beora, voice recordings of conference calls between Metro Officials recorded by the applicant, and the transfer of information regarding some tender to Beora.
Consequently, a crime was registered against the applicant under Section 66 B of the Information Technology Act, 2000, and Section 3(1)(c) of the Official Secrets Act, 1923, leading to Charge-sheet.
Appearances:
Advocate S.P. Bhandarkar, for the Applicant
APP Nikhil Joshi, for the non-applicant No.1/State
Advocate G.A. Kunte, for non-applicant No.2.
