Negligence, Not Espionage : Bombay High Court Acquits Ex-BrahMos Engineer Of Charges For 'Cyber Terrorism', Leaking Info To Pakistan

A bench of Justice Anil S Kilor and Justice Pravin S Patil, set aside Nishant Agrawal's conviction for the charges of cyber terrorism and spying holding that the prosecution failed to prove any "mens rea" or guilty mind to threaten the sovereignty of India.

The Court, however, maintained his conviction under the lesser charge of Section 5(1)(d) of the Official Secrets Act, 1923, for failing to take "reasonable care" of official files found on his personal laptop.

Since Agrawal has been incarcerated since his arrest in 2018, the Court directed that he be given the benefit of set-off. This order resulted in his release from prison on Monday.

Case in brief

Briefly put, in 2018 the Anti-Terrorist Squad (ATS), Lucknow, acted on a tip-off that fake Facebook accounts operating from Pakistan under the names 'Neha Sharma' and 'Pooja Ranjan' were being used to "honey trap" Indian defence personnel.

The investigation led to accused-convict/appellant [Nishant Agrawal], a recipient of the 'Young Scientist Award', employed at the BrahMos facility in Nagpur.

The prosecution alleged that Agrawal was in contact with these foreign agents and had unauthorizedly copied 'secret' and 'restricted' files related to the BrahMos Supersonic Cruise Missiles used by all defense forces onto his personal laptop and personal hard-disc.

They argued that he downloaded certain data stealing malware at the behest of a contact named Sejal Kapoor, thereby creating a conduit for data leakage to Pakistan

Based on these allegations, the Additional Sessions Judge-1, Nagpur last year convicted Agrawal under the stringent Section 66-F Information Technology Act (Punishment for Cyber Terrorism) and various sections of the Official Secrets Act (OSA) and he was sentenced to life imprisonment.

Challenging his conviction, Agarwal moved the HC wherein it was argued that at the most it can be said that the accused failed to take reasonable care or the accused so conducted himself as to endanger the safety of the information possessed by him.

It was therefore, argued that the evidence brought on record by the prosecution does not go beyond the offence punishable under Section 5(1)(d) of the Act of 1923.

It was categorically submitted that he had merely shared his bio-data on the e-mail of Sejal Kapoor and also chatted with her on the Linked-in account for the purpose of securing a job in the UK.

The State, on the other hand, argued that Agarwal had given the undertaking to maintain secrecy and since he had every knowledge about the importance of the documents and the consequences if the said documents are leaked, therefore, he was rightly convicted.

High Court's observations

Examining the evidence presented by the prosecution, the High Court noted that its narrative of espionage was not proved. The Bench observed that while Agrawal did communicate with Sejal Kapoor on LinkedIn, the chats were exclusively focused on securing a job opportunity in the United Kingdom.

"...the prosecution has failed to establish that there was any intention of the accused during the period 01/07/2013 to 30/12/2013 to copy the information for the purpose to leak the same to Sejal Kapoor subsequently in the year 2018,” it remarked.

The 49-page judgment notes that 'Sejal Kapoor' named account had approached Agrawal with a recruitment proposal for a company named "Hays United Kingdom" and the malware links sent by Kapoor, which the prosecution claimed were tools for cyber terrorism, were downloaded by Agrawal because he believed they were necessary for an upcoming interview.

The Court observed, "The alleged malware which were downloaded by the appellant were with an intention to apply to secure a job in the UK and not to transfer any information or data."

Significantly, the Bench found that Agrawal had not communicated with 'Sejal Kapoor', 'Pooja Ranjan' and 'Neha Sharma' named accounts through phone or any other electronic media except chat, and contrary to the "honey trap" theory, there was no evidence he shared any departmental documents on the LinkedIn App.

The Court also took into account Agrawal's defence that the alleged 'secret' files dated back to 2013, during Agrawal's training period at Hyderabad and the same were provided to him by his then-superior for project work.

The High Court drew an adverse inference against the prosecution for failing to examine Agarwal's superior as a witness. The Court noted that the superior officer, who had the discretion to allot projects to trainees, never complained that Agrawal misused his computer or possessed data without authority.

"The possibility that Alan Abraham gave the alleged secret documents to the accused during training for the project purpose cannot be ruled out," the Bench said.

Furthermore, the Court pointed out that Agrawal was a part of the core team dealing with handing over 70 to 80 missiles during 2014 and 2018 to the armed forces and he was having these files in his official device and had there been any such intention to transfer the secret and confidential information to the third party, he could have copied those filed onto his personal computer, which he didn't.

The Court also analyzed the requirements of "Cyber Terrorism" under Section 66F of the IT Act and "Spying" under the OSA and noted that these serious offences require a specific intent [mens rea] to threaten the unity, integrity, or security of India.

However, the Judges noted that nothing was brought on record by the prosecution and in the trial court's order to show that the appellant knowingly or intentionally transferred any information known to him which were prejudicial to the safety or interest of the State.

The Court highlighted Agrawal's outstanding Annual Confidential Reports and the absence of any negative inputs from the Intelligence Bureau or security agencies regarding his conduct.

Thus, while acquitting him of the graver charges, the Court did not absolve Agrawal of professional carelessness as it found that by keeping official files on a personal device, even if obtained years ago for training, Agrawal had violated Section 5(1)(d) of the Official Secrets Act.

For context, this provision attracts where the accused does not take proper, normal and sensible precautions to protect the confidential material, or behaves in a manner which exposes its secrecy or security, even if he did not specifically intent to look or communicate it

Case title - NISHANT S/O PRADEEP AGRAWAL Vs ANTI TERRORIST SQUAD, LUCKNOW, THR. INVESTIGATING OFFICER, UTTAR PRADESH AND 1

Citation : 

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