Abdul Gafoor v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 23[RD] 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:** Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 23[RD] 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:** Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 23[RD] 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:** Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 23[RD] 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:** Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 23[RD] 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:** Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 6 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 23[RD] 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:** Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 7 ## **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 Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 8 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. Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 9 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. Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 10 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 obtained without the knowledge or consent of the SIM owners. Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 11 Lawfully, the income generated through the usage of a SIM card goes to the respective service provider and the Government. The culprits have cheated the service provider and the Government by dishonestly inducing them with fake documents and deny them the income thus generated. Thus there is clear cut evidence of cheating; most of the SIM cards involved in the cases arrived in the office address of Binafa Enterprises owned by the petitioner which suggests his association with the procurement of SIM cards. 5. During the course of investigation, according to the Assistant Commissioner he got legal opinion from the Public Prosecutor that there are enough materials to attract offence under Section 66F of the I.T. Act also, on that basis reports have been filed incorporating that provision also. Moreover on the confession statement given by Juraize, a native of Kolathara revealed that one Shabeer, Krishnaprasad and Abdul Gafoor, the petitioner were the master minds behind the illegal installations. One Ibrahim Pullattil, another accused and Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 12 co-conspirator was also arrested for Crime Nos. 541/2021 & 542/2021 of Kasaba police station from Bengaluru. The said Shabeer, Krishnaprasad and the petitioner are absconding. It also revealed by the said Juraize that three of the premises from where illegal installations were found were taken on rent by producing forged Aadhar card of the said Juraize, which was done by the petitioner at his firm Binafa Enterprises. That means offences under Sections 468 and 471 are also made out. The rental agreement of the crime scene of Crime No. 320/2021 of Nallalam police station is in the name of the It has also come out that similar cases petitioner. were registered in Bengaluru and the prime accused Ibrahim Pullattil, a native of Kadampuzha along with nine others were arrested. That case was registered on call interception by the Military Intelligence. The interrogation of the said Ibrahim revealed the close connection with Shabeer and the petitioner. The soft switch used by Ibrahim Pullattil to run parallel exchanges is of Chinese origin having Cloud Server in China Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 13 similar to the Dinstar Gateway device seized in these cases which are also having Chinese Cloud Storage. The said Ibrahim had sold call routes for huge amounts to a Pakisthani native named Muhammed Raheem, a Bangladeshi native named Sahir and two Chinese ladies by name Fly and Lee. It is a fact that those foreign nationals also operated Ibrahim's illegal system in India for many months. His skype chats and files recovered under Section 27 of the Evidence Act revealed that he was in connection with various foreign nationals and also was in regular contact with 168 Pakistan nationals. Acquaintance of Ibrahim with petitioner aggregates the situation. Last year a call to Military Installation was intercepted in Kerala and a Palakkad native was arrested by Mumbai Crime Branch who busted many illegal exchanges that work around Bombay Stock Exchange and they could gather substantial clues that such illegal exchanges were used for money laundering activities and investigation in a gold smuggling of Quilandy police station recently had led to Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 14 identification of phone calls originated from illegal exchanges. Phone numbers involved in Pocso Act cases across the State also revealed to have originated from parallel exchanges. Moreover, after 2017, number of phone calls to India from abroad reduced to 1/4[th] . Even though that is attributable to advancement of the social media, it is a fact that installation of illegal telephone exchanges is not a profitable business. They are being operated in buildings with high rent. Despite the expensive nature of Gateway devices, scarcity and risk elements to procure SIM cards, these peoples are still engaged in such activities which suggest that culprits behind these operations are acquiring huge monitory benefits by channelling criminal activities. Devices seized in different cases indicate that mode of operation was identical. The accused persons had close links with each other. It is explicitly evident that intention and motive of the culprits were not a mere case of bypassing a phone call or cheating service providers. It is a clear threat to nation's internal security. According to the Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 15 Assistant Commissioner, the investigation is only at preliminary stage. The concealed SIM boxes have to be identified. Lot of soft data has to be recovered, vital data from the Gateway devices and servers have to be extracted; pattern of incoming and outgoing calls has to be identified and grouped, sources of income of the accused persons and their foreign relation have to be verified, origin of the SIM cards, their unlawful accession and the social media groups dealing with SIM business have to be identified and statements of SIM card owners across the country are to be recorded. For all these purposes, investigation has to be conducted by custodial interrogation of the accused persons. Petitioner and Shabeer are childhood friends and they had travelled extensively over the country for expanding their illegal business. The petitioner is highly acquainted with foreigners in connection with his traditional 'Uru' business, his foreign relation and source of income have to be verified. Moreover, his applications for anticipatory bail in all the cases were dismissed by this Court. Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 16 Considering the large spectrum, jurisdictional magnitude and gravity of the cases, the applications are sought to be dismissed. 6. I elaborately heard the learned counsel for the petitioner, Sri. Babu S Nair and Sri. C.S. Hrithwik, learned Senior Public Prosecutor. 7. According to Sri. Babu S. Nair, this is a clear misuse of the process of court. Even if the entire allegations in the FIR are taken on its face value, that would not make out an offence under Section 420 of the IPC or Section 66F of the I.T. Act. They have been incorporated to magnify the seriousness of the allegations, for the purpose of taking the petitioner into custody. Referring to ingredients of Section 420 of the IPC, he said that for attracting offence of cheating, at first there must be cheating as defined under Section 415 of the IPC. By the said cheating, another person should be induced to deliver any property or valuable security. Here there is no allegation that the petitioner had cheated anyone and thereby, induced him to Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 17 deliver any property. Here the alleged loss is for the Government or the Department of Telecommunications which is an inanimate body, at whose instance offence under Section 420 of the IPC cannot be attracted. According to him, allegations touching offence under Section 66F of the I.T. Act are also exaggerated and therefore, there is absolutely no basis in proceeding against the petitioner. He also relied on various decisions in **Abdul Majeed Kalathil v. District Collector, Malappuram and Others [2009 (3) KHC 637]** , **State of Haryana and others v. Ch. Bhajan Lal and others [AIR** **1992 SC 604]** , **Oommen Koshy v. State of Kerala [1989 (2) KLT 384]** and **M Shankaraiah and another v. State of** . **Karnataka and others [1993 Supp (4) SCC 596]** 8. Referring to a decision of the Madras High Court in Criminal O.P. No. 10701/2017 dated 20.11.2019 he said that in order to attract cyber crime there must be evidence to show that the act was done to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 18 section of the people. 9. Referring to the remand application in respect of the said Ibrahim Pullattil dated 04.08.2021 in Crime No. 541/2021 of Kasaba police station, he said that there is no allegation that offence under Section 66F of the I.T. Act was committed. According to him, the Additional City Civil and Sessions Court, Bengaluru has already granted bail to Ibrahim Pullattil. Copy of the order dated 27.07.2021 was also placed before Court for perusal. 10. On the other hand, the learned Senior Public Prosecutor took to me the copy of the reports dated 01.12.2021 given by the Assistant Commissioner of Police who investigates the case showing that offence under Section 66F(1)(B) of the I.T. Act has been incorporated in all the crimes. According to the learned Senior Public Prosecutor, the petitioner had moved applications for anticipatory bail in all these crimes and by common order dated 05.11.2021, the Court had considered the gravity of the offence in detail and Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 19 dismissed the applications and he was directed to surrender before the Investigating Officer forthwith. But without obliging the direction, he approached this Court, even before drying the ink in that order. That aspect was suppressed from the Court; when the matter had come up for admission, this Court had specifically put that question, but still the order dated 05.11.2021 was not disclosed which indicates that the petitioner has not come with clean hands. In this connection, he relied on the decisions reported in **Padal Venkata Rama Reddy alias Ramu v. Kovvuri Satyanarayana Reddy and Others [(2011) 12 SCC 437]** , **Aravindakshan and another v. State of Kerala and another [1985 Cri LJ 1389]** and **Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others [2021 SCC Online SC 315].** 11. The petitioner has not challenged the factual allegations in the crimes. His grievance is that invocation of Section 420 of the IPC and 66F of the I.T. Act is arbitrary, illegal and only to magnify the allegations against the Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 20 petitioner. The learned counsel wanted to say that in the factual background, offences under Section 420 of the IPC and Section 66F of the I.T. Act are illusory, only for roping the petitioner in a non-bailable offence and to get him remanded in judicial custody. 12. The First Information Report in all the cases have been produced by the petitioner himself. All these crimes were registered on 02.07.2021 on the basis of detection made on 01.07.2021 at different times. The allegations are more or less on same lines. It is stated that the police party on search had found multiple broad band connections being used by the petitioner and converted international phone calls and other calls by terminating those calls and bypassing them to local calls with the help of illegal call routing Gateway devices by inserting pre-activated SIM cards; the owners of the SIM cards are totally unaware of such use; everything was done with criminal intention for unlawful gain and in the process they cheated various telecom service providers and also the Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 21 Government of India. Thus it is alleged that they had accessed, tampered, altered and diminished the value of the telecommunication network in the country by conducting parallel telephone exchanges in six different locations in Kozhikode city and caused huge monitory loss to the Government and service providers. 13. These six detections were made almost simultaneously and modus operandi in all the places was one and the same. The gadgets and devices used by the petitioner and his co-accused were seized and then it came out that those were procured by the petitioner and others with the intention of running parallel telephone exchanges. As noticed earlier, the statements filed by the Investigating Officer, the Assistant Commissioner of Police, District C branch, Kozhikode indicate that the premises, where such parallel telephone exchanges were working, were in the possession of the petitioner. Some of the rental arrangements were made by forging the Aadhar card from his firm Binafa Enterprises. It is also stated that some of Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 22 the SIM cards had reached the office of the petitioner through courier service. 14. In fact, after hearing the learned Senior Public Prosecutor and perusing the statements of the Investigating Officer, the allegations are very serious and disturbing. The learned counsel for the petitioner was making valiant attempts to make out that ingredients of offence under Section 420 of the IPC are not made out as there is no inducement or delivery of property or valuable security and that an inanimate body cannot be cheated, since State is not a person. Such an argument cannot be accepted in right earnest. The contention of the learned counsel is ignoring Section 11 of the IPC where the word ‘person’ includes any company or association or body of persons, whether incorporated or not. If the argument is accepted, that would lead to embarrassing situation in which the State may not be able to launch prosecution under Section 420 of the IPC. 15. Whatever it may be, the allegations against the Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 23 petitioner are very serious. The most disturbing aspect is that when simultaneous searches were made at six different places, similar situations could be noticed and various gadgets and devices could be seized by the police, all lending support to the allegation that the accused persons were running parallel telephone exchanges. In fact, Section 4 of the Indian Telegraph Act makes it clear that it is the exclusive privilege of the Central Government of establishing, maintaining and working telegraphs. The other service providers could work only under the Central Government, on proper licence. Petitioner does not have a case that he has obtained any such licence. It is true that offence under the provisions of the Indian Telegraph Act and Indian Wireless Telegraphy Act are bailable. Still, it is evident that such running of parallel telephone exchanges has caused huge revenue loss to the Central Government. In fact, that itself is sufficient to infer ingredients of cheating. 16. Turning to the offence under Section 66F of the I.T. Act, it is true that such an offence was not incorporated when Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 24 the crimes were registered. Investigation has led that there was a large network working and that there are anti-social elements working behind in running such illegal exchanges. A report filed by the Investigating Officer in sealed cover also gives sufficient hints to the magnitude of the allegations against the petitioner and others. It may be true that his co-accused might have been given bail by the Sessions Court in Bengaluru after detaining him in custody for some time. The copy of remand application in respect of the said Ibrahim Pullattil, the third accused, dated 04.08.2021 also gives sufficient hints to the effect that the activities of the accused persons are causing hazards to the national security. It is also stated that they have indulged in acts threatening the internal security of the country. On that basis, legal opinion was sought from the learned Public Prosecutor and then only offence under Section 66F of the I.T. Act was incorporated. 17. It is also important to note that these searches were made on the basis of the tips given by the Military Intelligence Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 25 that there is widespread running of parallel exchanges in different stations. Even though it is not a profitable venture for the person who procures such devices and runs the exchanges, it is a matter of investigation as to what is the real motive behind such activities. The Investigating Officer has reasons to believe that the said Ibrahim Pullattil had wide range of connections with the citizens of Pakistan, Bangladesh and China. They have procured pre-activated SIMS, without the knowledge and consent of the SIM card holders. Necessarily, these are activities causing threat to the national unity and integrity. In order to attract Section 66F of the I.T. Act, it must be an act which intends to threaten the unity, integrity, security or sovereignty of India. 18. Having heard the learned counsel on both sides, I have no doubt that there are prima facie materials to invoke Section 66F of the I.T. Act also. 19. The Supreme Court has laid down the following guidelines for exercising inherent power of the Court to quash Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 26 ## the FIR during the course of investigation:- - 'i) when the allegations made in the FIR or complaint, if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence; - ii) when the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose cognizable offence justifying the investigation by the police; - iii) when uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not make out a case against the accused; - iv) when the allegations in the FIR constitute only non-cognizable offence; - v) when the allegations are so absurd or inherently improbable on the basis of which no prudent person can proceed against the accused; - vi) where there is an express legal power engrafted in any provisions of the Code or the concerned Act in which the criminal proceedings is instituted, the institution and continuance of the proceedings providing efficacious remedy to the aggrieved party; and - vii) where the proceedings is manifestly attended with Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 27 mala fide motive or is maliciously instituted with an ulterior motive for wrecking vengeance on the accused.' I have no doubt that cases of the petitioner do not fall within any of the above categories. 20. Even though the learned counsel submitted that such provisions have been incorporated with the intention of incorporating non-bailable offences, it was not heard to say that the detecting officers or the Investigating Officer have any previous acquaintance with the petitioner, so that no malice or ill-will could be attributed against them for launching a false prosecution against him. Moreover, searches conducted in his premises found incriminating materials and circumstances indicating that he had been running parallel telephone exchanges. As already noticed, simultaneous searches done in six different places showed that it was not an isolated incident. But calculated and designed attempts have been made to run such parallel exchanges. Going by the statement of the Investigating Officer, the devices were such that incoming and Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 28 outgoing calls could not have been traced by any authority. That means there is considerable force in the allegation that the petitioner and others have indulged in such activities with calculated intention of accessing to the computer resources without authorization and obtained access to information and data unauthorisedly. There are reasons to suspect their access to foreign nationals including Pakistan, Bangladesh and China. Such activities definitely cause threat to the national security and stability of the country. 21. I have also reasons to think that the petitioner has not approached this Court with clean hands. He had moved applications under Section 438 of the Cr.P.C. for getting anticipatory bail which were dismissed on 05.11.2021. These MCs were filed on 16.11.2021 and it came for admission on 18.11.2021 and at that time, courts were sitting online. At the time of admitting the case, the learned counsel for the petitioner had strenuously pressed for an interim order as he asserted that ingredients of offence under Section 420 of the Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 29 IPC, the only non-bailable offence at that time, are not made out. At that time, the learned Public Prosecutor was not aware of the dismissal of the applications under Section 438 of the Cr.P.C. I had put a definite question to the learned counsel as to whether he had made any application for pre-arrest bail. But the learned counsel parried the question. If the fact that the applications under Section 438 were dismissed by this Court was disclosed, this Court would have thought twice before passing an interim order interdicting coercive steps including arrest against the petitioner. It is true that there is no obligation on the part of the petitioner to aver such a fact in a petition filed under Section 482 of the Cr.P.C. Still if the fact was disclosed at the time of admission, an interim order would not have been passed. 22. Whatever it may be, sufficient grounds are not made out to say that offences under Section 420 of the IPC and 66F of the I.T. Act are not revealed. Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 30 The petitions are lacking in merits and are dismissed. All interim orders shall stand vacated. Sd/- **K.HARIPAL JUDGE** **DCS/22.12.2021** Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 31 ## **APPENDIX OF CRL.MC 5578/2021** **PETITIONER'S ANNEXURE** **ANNEXURE A** **TRUE COPY OF F.I.R IN CRIME NO. 543/2021 OF THE CUSBA POLICE STATION, KOZHIKKODE DATED, 2.7.2021.** **RESPONDENT'S ANNEXURE** **ANNEXURE A** **TRUE COPY OF THE ORDER DATED 05.11.2021 IN B.A. NO. 7949/2021 AND CONNECTED CASES** ## **APPENDIX OF CRL.MC 5580/2021** **PETITIONER'S ANNEXURE** **ANNEXURE A** **TRUE COPY OF F.I.R. IN CRIME NO. 542/2021 OF THE CUSBA POLICE STATION DATED 2.7.2021.** ## **APPENDIX OF CRL.MC 5581/2021** **PETITIONER'S ANNEXURE** **ANNEXURE A TRUE COPY OF F.I.R. IN CRIME NO.320/2021 OF THE NALLALAM POLICE STATION, KOZHIKODE, DATED 2.7.2021** **RESPONDENT'S ANNEXURE** **ANNEXURE A TRUE COPY OF THE ORDER DATED 05.11.2021 IN B.A. NO. 7949/2021 AND CONNECTED CASES** Crl.M.C.Nos.5578, 5580, 5581, 5583, 5589 & 5595 OF 2021 32 ## **APPENDIX OF CRL.MC 5583/2021** **PETITIONER'S ANNEXURE** **ANNEXURE A TRUE COPY OF F.I.R IN CRIME NO. 539/2021 OF THE CUSBA POLICE STATION, KOZHIKKODE DATED, 2.7.2021.** ## **RESPONDENT'S ANNEXURE** **ANNEXURE A TRUE COPY OF THE ORDER DATED 05.11.2021 IN B.A. NO. 7949/2021 AND CONNECTED CASES** ## **APPENDIX OF CRL.MC 5589/2021** **PETITIONER'S ANNEXURES** **ANNEXURE A1 TRUE COPY OF F.I.R IN CRIME NO. 540/2021 OF THE CUSBA POLICE STATION, KOZHIKKODE DATED 2.7.2021.** **RESPONDENT'S ANNEXURE** **ANNEXURE A TRUE COPY OF THE ORDER DATED 05.11.2021 IN B.A. NO. 7949/2021 AND CONNECTED CASES** ## **APPENDIX OF CRL.MC 5595/2021** **PETITIONER'S ANNEXURES** **ANNEXURE A TRUE COPY OF F.I.R IN CRIME NO 541/2021 OF THE CUSBA POLICE STATION, KOZHIKODE DATED 2.7.2021** **RESPONDENT'S ANNEXURE** **ANNEXURE A TRUE COPY OF THE ORDER DATED 05.11.2021 IN B.A. NO. 7949/2021 AND CONNECTED CASES**