Delhi High Court: In a case relating to illegal interception/monitoring of telephone calls of National Stock Exchange (‘NSE’) employees by iSec Services Pvt. Ltd (iSec), a privately owned company under the guise of the contract of Study of Cyber Vulnerabilities, whose approval was allegedly given by the petitioner, Chitra Ramakrishna (‘petitioner’) and paid Rs. 4.54 crore to iSec Services as a consideration thus, attracting various offences under different statutes, Jasmeet Singh J., grants bail to Ms. Ramakrishna as the material placed on record showed prima facie there are reasonable grounds to believe that she is not guilty of the offence, and she is not likely to commit any offence while on bail.
The applicant has earlier sought regular bail before the Special Judge, Rouse Avenue, New Delhi in connection with the present ECIR which was dismissed on 29-08-2022. The issue under consideration in the present petition is whether the scheduled offences are made out against the Applicant or not for the purpose of the bail application?
The Court noted that the scheduled offences alleged against the applicant are Section 72 of the Information Technology Act, 2000 (IT Act), Section 120-B of Penal code, 1860 (IPC) read with section 420 of IPC and Section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act).
The Court stated that as regards Section 72 of IT Act is concerned, the elements of the said offence are not made out in the present case as neither Ms. Chitra nor the NSE was conferred with any powers under the said Act. Moreover, Ms. Chitra or the NSE was not acting in pursuance of the powers conferred under the IT Act or the rules or regulations made therein.
The Court further noted that the contract between NSE and M/s ISEC permitted recording of conversations. Recording or tapping of phone calls sans consent of the concerned persons is an offence punishable under the Indian Telegraph Act and Indian Wireless Telegraphy Act. However, the same are not scheduled offences. Thus, invocation of section 72 of the IT Act is misplaced in the present case.
The Court observed that on a bare perusal of the FIR, prosecution complaint as well as the remand applications it is evident that Section 120-B IPC has not been invoked as an independent standalone scheduled offence as the same is read with Section 420/409 IPC. Section 409 IPC is not a scheduled offence, however, as per the documents, NSE was recording conversations since 1997 through other vendors and the transactions with ISEC occurred from 2009 to 2017. As call recording was done by NSE prior to iSec’s involvement, it is wrong to allege that Ms. Chitra Ramakrishna conspired with ISEC to illegally tap and record calls. Thus, the ingredients of section 120-B IPC are not made out in the present case.
The Court opined that, no victim has been identified by the ED who has suffered a wrongful loss on account of deception or cheating by Ms. Chitra, except for a vague and bald averment that customers have been cheated, there is no mention of the names of the persons who have been cheated. The ingredients of Section 420 IPC are not made out in the present case, thus, prima facie the ingredients of the scheduled offences under IPC viz., Section 120B read with section 420 IPC are not made out against her.
The Court observed that the ingredients of Section 13(1)(d) of the PC Act are not made out in the present case as Ms. Chitra is not a public servant within the meaning of the PC Act and NSE is not a public authority. ED has also failed to show how she has obtained for herself or for any other person any valuable thing or pecuniary advantage within the meaning of Section 13 of PC Act. There is no evidence placed on record to prove corruption or abuse of position by her. Thus, the ingredients of section 13(1)(d) r/w 13(2) PC Act are not made out against the Ms. Chitra Ramakrishna.
Thus, the Court granted bail while noting that prima facie there are reasonable grounds to believe that Ms. Chitra is not guilty of the offence, and she is not likely to commit any offence while on bail.
[Chitra Ramakrishna v. Enforcement Directorate, 2023 SCC OnLine Del 653, decided on 09-02-2023]
Advocates who appeared in this case :
Through: Ms. Rebecca John, Sr. Adv. with Mr. Rony John, Mr. Shivam Batra, Mr. Akhil Ranganathan, Mr. Subir Sarkar, Mr. Ankit Bhushan, Mr. Arshdeep Singh, Mr. Aditya Luthra, Mr. Piyush Swami, Mr. Anuj Dubey, Advocates for the Petitioner;
Mr. Zoheb Hossain, Adv. with Mr. Vivek Gurnani, Mr. Siddharth Sharma, Advocate for the Respondent.
*Arunima Bose, Editorial Assistant has reported this brief.