BLACK HAT HACKERS

A black hat is a person who compromises the security of a computer system without permission from an authorized party, typically with malicious intent. The term white hat is used for a person who is ethically opposed to the abuse of computer systems, but is frequently no less skilled. The term cracker was coined by Richard Stallman to provide an alternative to using the existing word hacker for this meaning.[1] The somewhat similar activity of defeating copy prevention devices in software which may or may not be legal in a country's laws is actually software cracking. Terminology Use of the term "cracker" is mostly limited (as is "black hat") to some areas of the computer and security field and even there, it is considered controversial. Until the 1980s, all people with a high level of skills at computing were known as "hackers". A group that calls themselves hackers refers to "a group that consists of skilled computer enthusiasts". The other, and currently more common usage, refers to those who attempt to gain unauthorized access to computer systems. Over time, the distinction between those perceived to use such skills with social responsibility and those who used them maliciously or criminally, became perceived as an important divide. Many members of the first group attempt to convince people that intruders should be called crackers rather than hackers, but the common usage remains ingrained. The former became known as "hackers" or (within the computer security industry) as white hats, and the latter as "crackers" or "black hats". The general public tends to use the term "hackers" for both types, a source of some conflict when the word is perceived to be used incorrectly; for example Linux has been criticised as "written by hackers". In computer jargon the meaning of "hacker" can be much broader. Usually, a black hat is a person who uses their knowledge of vulnerabilities and exploits for private gain, rather than revealing them either to the general public or the manufacturer for correction. Many black hats hack networks and web pages solely for financial gain. Black hats may seek to expand holes in systems; any attempts made to patch software are generally done to prevent others from also compromising a system they have already obtained secure control over. A black hat hacker may write their own zero-day exploits (private software that exploits security vulnerabilities; 0-day exploits have not been distributed to the public). In the most extreme cases, black hats may work to cause damage maliciously, and/or make threats to do so as extortion.

Methods
Techniques for breaking into systems can involve advanced programming skills and social engineering, but more commonly will simply be the use of semi-automatic software. Common software weaknesses exploited include buffer overflow, integer overflow, memory corruption, format string attacks, race conditions, cross-site scripting, cross-site request forgery, code injection and SQL injection bugs

GREY HAT HACKERS

A Grey Hat in the computer security community, refers to a skilled hacker who sometimes acts legally, sometimes in good will, and sometimes not. They are a hybrid between white and black hat hackers. They usually do not hack for personal gain or have malicious intentions, but may or may not occasionally commit crimes during the course of their technological exploits. Disambiguation One reason a grey hat might consider himself to be grey is to disambiguate from the other two extremes: black and white. It might be a little misleading to say that grey hat hackers do not hack for personal gain. While they do not necessarily hack for malicious purposes, grey hats do hack for a reason, a reason which more often than not remains undisclosed. A grey hat will not necessarily notify the system admin of a penetrated system of their penetration. Such a hacker will prefer anonymity at almost all cost, carrying out their penetration undetected and then exiting said system still undetected with minimal damages. Consequently, grey hat penetrations of systems

tend to be for far more passive activities such as testing, monitoring, or less destructive forms of data transfer and retrieval. A person who breaks into a computer system and simply puts their name there whilst doing no damage (such as in wargaming - see) can also be classified as a grey hat.

WHITE HAT HACKERS

A white hat hacker, also rendered as ethical hacker, is, in the realm of information technology, a person who is ethically opposed to the abuse of computer systems. Realization that the Internet now represents human voices from around the world has made the defense of its integrity an important pastime for many. A white hat generally focuses on securing IT systems, whereas a black hat (the opposite) would like to break into them. Terminology The term white hat hacker is also often used to describe those who attempt to break into systems or networks in order to help the owners of the system by making them aware of security flaws, or to perform some other altruistic activity. Many such people are employed by computer security companies; these professionals are sometimes called sneakers. Groups of these people are often called tiger teams. The primary difference between white and black hat hackers is that a white hat hacker claims to observe ethical principles. Like black hats, white hats are often intimately familiar with the internal details of security systems, and can delve into obscure machine code when needed to find a solution to a tricky problem. Some use the term grey hat and fewer use brown hat to describe someone's activities that cross between black and white. In recent years the terms white hat and black hat have been applied to the Search Engine Optimization (SEO) industry. Black hat SEO tactics, also called spamdexing, attempt unfairly to redirect search results to particular target pages, whereas white hat methods are generally approved by the search engines

Central Government Act

Section 66 in The Information Technology Act, 2000
66. Hacking with computer system.(1) Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes i s value or utility or affects it injuriously by any means, commits hacking. (2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.

"Hacking" ..In India, It's Different..Let is Retain it

Section 66 of ITA-2000 which defines "Hacking" has been a subject of discussion particularly from the point of view of its distinctiveness to similar Computer Misuse" provisions in other Country legislations. This article revisits the section with particular reference to hacking (as per section 66) by Employees, Directors and Partners. It also discusses whether one partner of a firm can allege hacking of the partnership computer by the other partner.

Section 66 of Information Technology Act: Hacking with Computer System Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person, destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking. Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.

Meaning of "Hacking" The word "Hacking" is one of the most common words used in the field of Cyber Crimes. In fact it is more or less a generic term used to represent Cyber Crimes. According to the global understanding, "Hacking" refers to "Unauthorized Access to a Computer Network" which may otherwise be called an "Unauthorized Intrusion". A finer distinction is made when such "Intrusion" is with a criminal intention of causing harm. In such cases the "Unauthorized Intrusion" may be called "Cracking". On the other hand, access undertaken to check the security vulnerability of a system though Unauthorized, is also called "Hacking" and is considered a part of the IT security testing. Such a Hacker has no intention of causing harm. Some times such hackers also act under the knowledge and permission (without access privileges being shared) of the Information Asset owners. While it is acceptable for the common man to refer to any Cyber Crime as "Hacking", and International community to accept the Wikipedia/dictionary.com definition of "Hacking", it is important for Cyber Law followers to understand that "Hacking" is the name given by law in India to a specific type of offence as defined in Section 66 of ITA-2000. It is therefore incorrect for us to use the term "Hacking" except as the offence under "Section 66 of ITA-2000". The definition provided in ITA-2000 for the Section 66 offence which is called "Hacking" is unique since it is distinct from definitions used in other International laws for defining an offence of some what similar nature. The Computer Misuse Act 1990 of UK defines offences under Section 1,2 and 3 as follows: Unauthorised access to computer material 1.(1) A person is guilty of an offence if (a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer; (b) the access he intends to secure is unauthorised; and (c) he knows at the time when he causes the computer to perform the function that that is the case. (2) The intent a person has to have to commit an offence under this section need not be directed at (a) any particular program or data;

(b) a program or data of any particular kind; or (c) a program or data held in any particular computer. (3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.
Unauthorised access with intent to commit or facilitate commission of further offences.

2.(1) A person is guilty of an offence under this section if he commits an offence under section 1 above ("the unauthorised access offence") with intent (a) to commit an offence to which this section applies; or (b) to facilitate the commission of such an offence (whether by himself or by any other person); and the offence he intends to commit or facilitate is referred to below in this section as the further offence. (2) This section applies to offences (a) for which the sentence is fixed by law; or (b) for which a person of twenty-one years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years (or, in England and Wales, might be so sentenced but for the restrictions imposed by section 33 of the [1980 c. 43.] Magistrates' Courts Act 1980). (3) It is immaterial for the purposes of this section whether the further offence is to be committed on the same occasion as the unauthorised access offence or on any future occasion. (4) A person may be guilty of an offence under this section even though the facts are such that the commission of the further offence is impossible. (5) A person guilty of an offence under this section shall be liable (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both; and (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.

Unauthorised modification of computer material. 3.(1) A person is guilty of an offence if (a) he does any act which causes an unauthorised modification of the contents of any computer; and (b) at the time when he does the act he has the requisite intent and the requisite knowledge. (2) For the purposes of subsection (1)(b) above the requisite intent is an intent to cause a modification of the contents of any computer and by so doing (a) to impair the operation of any computer; (b) to prevent or hinder access to any program or data held in any computer; or (c) to impair the operation of any such program or the reliability of any such data. (3) The intent need not be directed at (a) any particular computer; (b) any particular program or data or a program or data of any particular kind; or (c) any particular modification or a modification of any particular kind. (4) For the purposes of subsection (1)(b) above the requisite knowledge is knowledge that any modification he intends to cause is unauthorised. (5) It is immaterial for the purposes of this section whether an unauthorised modification or any intended effect of it of a kind mentioned in subsection (2) above is, or is intended to be, permanent or merely temporary. (6) For the purposes of the [1971 c. 48.] Criminal Damage Act 1971 a modification of the contents of a computer shall not be regarded as damaging any computer or computer storage medium unless its effect on that computer or computer storage medium impairs its physical condition.

(7) A person guilty of an offence under this section shall be liable (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both; and (b) on conviction on indictment, to imprisonment for a term not not exceeding five years or to a fine or to both Under Section 1 above, offence is recognized when a person knowingly manipulates a computer to gain accesses to a computer without authority. The requirement focuses on the intention to gain access to data even if the person does not have any knowledge of what kind of data he is likely to access. Section 2 covers instances where the gaining of access is to commit an act otherwise declared as an offence in any other statute. Section 3 covers instances where there is "unauthorised modification of data" with intent and knowledge. Similar provisions are provided in the Computer Misuse Act 1994 of Singapore. It must be remembered that these definitions of Cyber Crime were already available for reference when the Indian ITA-2000 was drafted and were in fact extensively consulted before the draft of the act was finalised. Hence the drafting of Section 66 with certain differences were deliberate and intentional though some who think everything foreign is always correct may still want the Indian law to be amended to copy the laws prevalent say in UK or Singapore. While the undersigned has been suggesting the removal of the name of section 66 crime as "Hacking" to avoid this confusion, it is considered that the rest of the section as it stands is very purposeful and needs to be retained. Indian Definition More Purposeful What makes Sec 66 more purposeful than other attempts of defining "Computer Misuse" or "Hacking" is that the focus of Section 66 is "Information Residing Inside a Computer" and what happens to it. It recognizes "Diminishing of Value" and "Injurious Effect" of the Information residing inside a computer. Ofcouse it also mentions the more obvious "Destruction", "Deletion" and "Alteration". Any Means It is immaterial as far as Section 66 is concerned, how the injurious effect on the information was brought about. It could have been by causing the computer to behave a particular fashion either by a "virus like" programme or by simply breaking the hard disk. It could even be by

bringing a powerful magnetic force near the computer so that the hard disk gets corrupted or causing a wide fluctuation in the voltage to cause the hard disk to malfunction. Knowledge Without Intention We may also observe that as regards the "intention", the section states "..with the intent to cause or knowing that he is likely to cause..". From the choice of the words, it is clear that the section is attracted even when there is no "intention" but only "knowledge of likelyhood of a loss ". The reason why the "mens rea" has been ignored is that the "Technology" is a sophisticated tool and any person using the technology has to be responsible and ensure that the world around is not adversely affected by their negligent use. Hence it was proposed that a technologist with knowledge that a certain action is likely to create harm to information will be liable if the damage occurs even when he may contend that he had no such intention. The onus of proving innocence (It was not likely under the circumstances that the disputed action would result in harm) is therefore put on the technology user and not on the community or the Information asset owner. What is Wrongful Loss? The section 66 gets attracted whenever there is a "Wrongful loss" to "public or any person". The word "Wrongful Loss" is not defined in ITA-2000. It is therefore to be interpreted in the given context with reference to the objective of this law. IPC, (Section 23 ) attempts to define "Wrongful gain" and "Wrongful loss" as follows.
"Wrongful gain" "Wrongful gain" is gain by unlawful means of property which the person gaining is not legally entitled. "Wrongful loss"- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining wrongfully, losing wrongfully- A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of property.

While the general principle of "Wrongful loss" can be derived from here, it is necessary to remember that the vision of IPC was limited to "Physical Property" and hence the meaning of "Deprivation" here is to "physically being prevented from the enjoyment of the proprty". This goes with the other concepts of "Theft" of movable property or "Tresspass" on an immovable property. In the context of ITA-2000 we need to look at how this provision has to be applied to "Virtual Properties" which even when stolen (ie copied), does not deprive the original owner of the property and even when tresspassed, allows others to simultaneously view and enjoy the same electronic document (eg: a Website document space which is simultaneously occupied by many).

Hence the meaning of "Wrongful loss" for the purpose of Section 66 of ITA-2000 cannot be limited to the available definition under IPC just for the reason that the phrase is similar. Also Section 66 itself provides the direction in which we may think to find a definition for "Wrongful Loss". For example, "Diminution in value or utility" of an "Information Asset" is "Wrongful loss" in the Information world. The value of this definition can be seen from the fact that "When a Confidential Information is viewed by an unauthorized person, i.e, when the confidentiality is compromised, we can say that its value and utility has diminished.. Similarly, due to a "Trojan activity" or a "Denial of Service Attack", the functioning of certain information assets is slowed down, then the utility of the asset has been diminished. Similarly, the word "Affecting it injuriously" can also be interpreted in several dimensions. The Victim under Section 66 One more subtle point of discussion about the section is about "Who should suffer the wrongful loss" to make the section operable. According to the section it could be "Public or any person". The use of the word "or" in conjunction with the word "person" indicates that it refers to somebody who cannot be treated as "public" in the given context. This fine distinction provided in the section is very important from the point of view of "Information Security". For example, in a E-Commerce world, information may be injured both in public domain or in private domain. Private domain here means the internal network of a company or a computer resource of an organization. It can also be a single laptop computer. Wrongul loss can occur to one employee of an organization, one Director of a Company or One Partner of a firm. These are the "persons" who come under the category of "Persons other than the public". If therefore a wrongful loss occurs to a Director or Partner of a business entity due to destruction, deletion, alteration, diminution in value or injurious damage of information residing in a computer, then section 66 is invoked. Offence by an Authorized person The next question which we some times come across is that if an authorized employee of a company is involved in causing the damage, can it be excluded from the definition of the offence since it was not an "Unauthorized Activity". In the UK type definitions, it is possible to envisage situations where the damage to the information has arisen from the actions of an authorized employee which may not amount to an offence. The thin line that needs to be drawn in this case is " A person may be authorized to make some modifications, but the one he is now accused of is a modification which is not authorized". For example, a person may be authorized to maintain a data base of people in which periodical changes in the address has to be noted. He is for the purpose of this operation "Authorized". However he makes the modification but enters a "Wrong Address" for some record. In this connection, he is authorised to make the change in address but not authorised if the change sought to be made is erroneous.

We note that the Indian definition of Sec 66 offence does not lend itself to such convoluted arguments. Here the point to be established is "Has the information been injured? diminished in value?".. Since the answer is in the affirmative when the address is changed erroneously, irrespective of whether there is authority or not the offence is recognized. This is one of the strong points of Sec 66 when it comes to "Data Protection" which is sought to be diluted in the proposed amendments. (Can we say by the lack of attention to details by the expert committee?). What is discussed above in respect of an employee also holds good in the case of "Partners" of a partnership firm when one partner injures information residing inside the computer causing a wrongful loss to the other person. Just as in the case of a joint account in a Bank, one of the joint account holders can cheat the other joint account holder though both appear to be the owners of the money or when one joint owner of a property can cheat the other joint owner, one partner of a firm can commit "hacking under section 66" against the other partner though both of them jointly own the information. This can typically happen when the partnership business is run jointly while the information system is under the control of one of the partners. In case there is a situation where the act of "Hacking" by one partner damages the partnership firm also, a question may be raised whether it is not infeasible for some body to "Hack on himself". This needs to be answered with reference to two possibilities. First is "Can a person commit an offence on himself". If we take the example of "An attempt to commit suicide" as an offence, it is clear that law does recognize commission of crime on oneself. Secondly, if a person injures himself for the purpose of making some body else responsible for the consequences, the act can be considered as an offence and cannot be defended with the argument "How can a person commit an offence on himself? It is therefore clear that it is possible that one owner of a system (or information) can commit hacking under Section 66 against another joint owner. Thus, we can observe that Section 66 of ITA-2000 has a far wider dimension than the definition of computer misuse as an offence in the British law. It is therefore prudent to retain it in the present form than to dilute it only to cases of "Unauthorised Actions". Any exceptional cases where a person is wrongly accused of hacking under section 66 can be handled under the provision of protection and exemptions given to people who practice "Due Diligence".

Naavi April 12, 2006 Related Articles:

Naavi's Comments on Proposed Amendments to ITA-2000 Additional Comment: "Morphing" is Hacking in India The case of a school boy in Ahmedabad who has been arrested for having morphed the photo of a girl class mate on an Internet downloaded pornographic picture and circulating it amongst his friends has reopened the debate on the definition of "Hacking" in India. In this offence, apart from section 67 of the ITA-2000, the question arises if any "Information Residing inside a computer" was "Altered" with the "Intent to cause" "Wrongful harm" to "Any person". It appears that all these ingredients can be found in the Ahmedabad case and hence Section 66 of ITA-2000 can also be invoked in the above case. This also provides a clarification to one of the points that was raised in our previous article "Hacking" ..In India, It's Different..Let is Retain it , where we discussed the issue of "Hacking" into "Own Computer" in the context of joint ownership such as in a partnership firm. The Ahmedabad case rightly focusses on the fact that if "Wrongful harm" can be inflicted on "Any Person", by "Altering" information in a computer owned by the accused, that action eminently qualifies to be called an offence and charged under Section 66 of ITA-2000. By the same argument, a graphic designer who designs a fake currency using software on his computer is also guilty of "Hacking" or a photographer who morphs pictures of celebrities with members of the public for a fee (which can be used to commit a fraud or defamation) is also guilty of "Hacking".

CASE STUDY
Kerala High Court
Dr.K.A.Koshy vs State Of Kerala, Represented By on 1 March, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 1163 of 2010() 1. DR.K.A.KOSHY, ... Petitioner 2. DR.SERENA, W/O. DR.K.A.KOSHY, Vs 1. STATE OF KERALA, REPRESENTED BY ... Respondent 2. S.I. OF POLICE, 3. COMMISSIONER OF POLICE, For Petitioner :SRI.P.VIJAYA BHANU For Respondent :SRI.K.RAMAKUMAR (SR.) The Hon'ble MR. Justice K.T.SANKARAN Dated :01/03/2010 ORDER K.T.SANKARAN, J.

------------------------------------------------------ B.A. NO. 1163 OF 2010 ------------------------------------------------------ Dated this the 1st day of March, 2010 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, filed by Dr.K.A.Koshy and Dr.Serena, who are two accused persons among the accused in Crime No.30 of 2010 of Rajpura City Police Station, Patiala District, Punjab. 2. The petitioners apprehend arrest in Crime No.30 of 2010, where the offences alleged, going by Annexure A First Information Report, are under Section 65 and 66(1) and (2) of the Information Technology Act, 2000. After hearing all the counsel and the learned Additional Advocate General of the State of Punjab, it is fairly clear that the offences alleged against the accused include the offences under Sections 419 and 420 of the Indian Penal Code as well. 3. In the Bail Application, the offences under Sections 419 and 420 of the Indian Penal Code were not mentioned. When the Bail Application came up for admission, the undertaking made by the B.A. NO. 1163 OF 2010 :: 2 :: learned Public Prosecutor appearing for respondents 1 and 3 that the petitioners will not be arrested for a period of two weeks was recorded and urgent notice was ordered to respondent No.2, the S.I. Of Police, Rajpura City Police Station, Patiala, Punjab. It is brought to my notice that the offence under Sections 65 and 66 of the Information Technology Act is bailable in view of Section 77B of the Information Technology Act. Section 77 B was introduced by the Information Technology (Amendment) Act 2008 (Act 10 of 2009). Section 77B provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offence punishable with imprisonment

of three years and above shall be cognizable and the offence punishable with imprisonment of three years shall be bailable. The learned counsel for the petitioners submitted that he inadvertently omitted to notice Section 77B of the Information Technology Act. However, the learned counsel for the petitioners submitted that as non bailable offences under Sections 419 and 420 of the Indian Penal Code are also involved, though the petitioners were not aware of the same and though it was not mentioned in the Bail Application, the interim order could be legally sustained and the Bail Application could be maintained. B.A. NO. 1163 OF 2010 :: 3 :: 4. From Annexure A FIR and also from the affidavit sworn to by the authorised representative of the de facto complainant Company, it is seen that one of the offences alleged against the accused is under Section 66(1) and (2) of the Information Technology Act. Section 66 of the Information Technology Act was substituted by Act 10 of 2009. After the amendment, Section 66 does not contain sub-sections (1) and (2). 5. The gist of the prosecution case is the following: The de facto complainant, M/s.Jay Polychem (India) Limited, a company registered under the Companies Act, 1956, having its Corporate office at D-143, Defence Colony, New Delhi, is primarily engaged in the business of trading and distribution of petrochemicals in India and overseas. The Company has a foreign clientele. The Company has a web site, namely, "www.jaypolychem.com". On 30.11.2009, one of the Directors of the Company noticed a web site under the name and style "www.jaypolychem.org" containing defamatory and malicious contents against the Company and its Directors. That web site was neither created nor set up by the Company. It is alleged that the same was set up by Samdeep Mohan

Varghese @ Sam, a disgruntled and dismissed employee of the Company, in conspiracy B.A. NO. 1163 OF 2010 :: 4 :: with Amardeep Singh @ Amy, who was also an employee of the Company and certain other persons such as Preeti and Charanjeet Singh @ Channi and the sister and brother-in-law of Sam, who are based in Cochin. They did so with a view to cause wrongful loss to the Company and wrongful gain to them. They did so as a result of the collusion and conspiracy among them. It is alleged that the accused persons sent various emails from fake email accounts to many of the customers of the Company. The said defamatory emails were made with a view to cause loss of reputation and loss to the Company and its Directors. There was a larger conspiracy among the accused persons, which requires to be unearthed during investigation. The defamation campaign run by the accused persons had caused immense damage to the name and reputation of the Company. The Company had suffered loss of several crores of rupees. It is alleged that Samdeep Mohan Varghese and Amardeep Singh, in collusion with the other accused, had impersonated different individuals and had used forged electronic records, created false email accounts, sent false and offensive information causing loss to the Company and had deceived the addressees. It is alleged that Samdeep Mohan Varghese had been passing on and exchanging confidential information of the Company to the other B.A. NO. 1163 OF 2010 :: 5 :: accused and third parties and those persons include his sister and brother-in-law (the petitioners herein). The sister and brother-in-law of Samdeep Mohan Varghese had financed a trip to Amardeep Singh and his wife to Cochin and Munnar. The accused persons had parted with information relating to the Company with a view to cause wrongful loss to the Company and wrongful gain to them. The accused, in collusion with each other, dishonestly cheated the

Company, committed acts of forgery, blackmailed the Company and its Directors and tried to extort money. All the accused persons had a common intention to commit the offence. The accused persons made unauthorised access to the Company's electronic data which caused great prejudice to the Company. 6. The First Information Report was registered on 5.2.2010 as FIR.No.30 of 2010. 7. It is stated that the first petitioner, Dr.K.A.Koshy, is an Anesthetist, working in Lakshmi Hospital, Divans Road, Ernakulam. The second petitioner, wife of Dr.K.A.Koshy, is a Pediatrician working in Krishna Hospital, Divans Road, Ernakulam. Annexures B and C certificates issued by Lakshmi Hospital and Krishna Hospital B.A. NO. 1163 OF 2010 :: 6 :: show that Dr.K.A.Koshy and Dr.Serena were working from 21.6.2009 and 1.7.2009 respectively till date in the respective hospitals. The learned counsel for the petitioners submitted that the petitioners are absolutely innocent of the allegations levelled against them. They are not in any way connected with the offence. It is stated in ground 3 of the Bail Application thus: "3. The brother of the 2nd applicant, Mr.Samdeep Mohan Varghese was an erstwhile employee of Jay Polychem India Ltd. He resigned the said office due to differences with the company management. The reason for differences was that the company, one which dealing with petrochemicals was engaging in lot shady and illegal activities. The company management feared these inside information, which Mr.Samdeep is fully aware of, if divulged would cause danger attracting legal prosecutions endangering the company and its directors. The said complaint making the sister and her husband as accused is only to harass Mr.Samdeep."

8. Crl.M.A.No.934 of 2010 was filed by the petitioners to raise additional grounds, wherein it is stated that the petitioners apprehend imminent arrest and detention by the personnel of the Punjab Police in Kerala on the allegation of having committed non- B.A. NO. 1163 OF 2010 :: 7 :: bailable offences and the petitioners apprehend serious threat to their lives at the hands of the Police Personnel from Punjab. The petitioners have also filed Crl.M.A.No.1004 of 2010 to accept Annexures B and C certificates. 9. Heard Sri.P.Vijaya Bhanu, the learned counsel for the petitioners, Sri.K.Ramkumar, Senior Advocate, and Advocate Sri.Vineeth Malhotra, on behalf of the de facto complainant, the learned Additional Advocate General of the State of Punjab appearing for the second respondent (S.I. of Police, Rajpura City Police Station, Patiala District, Punjab) and the learned Public Prosecutor appearing for respondents 1 and 3 ( State of Kerala and Commissioner of Police, Ernakulam City). 10. Sri.K.Ramkumar submitted that there is no averment in the Bail Application that the petitioners apprehend arrest on an accusation of having committed non-bailable offences and, therefore, the application under Section 438 of the Code of Criminal Procedure is not maintainable. Sri.Ramkumar also submitted that there is also no mention in the Bail Application that the petitioners apprehend arrest in the State of Kerala. It is submitted by the B.A. NO. 1163 OF 2010 :: 8 :: counsel that the petitioners cannot improve the situation by filing a petition, which now the petitioners have done. It is also submitted by Sri.K.Ramkumar and also by Sri.Vineeth Malhotra that two of the accused who were arrested had confessed that they had handed over huge amounts to the petitioners. The case involves a multi crore scam.

It is stated that the laptops belonging to the petitioners would be good piece of evidence and if the petitioners are granted anticipatory bail, they might tamper with it. Sri.Ramkumar relied on the Supreme Court decision in Joginder @ Jindi v. State of Haryana (2008 (4) KHC 294(SC)), which states that a petition under Section 438 of the Code of Criminal Procedure in relation to a bailable offence would be misconceived. He also relied on the decision in Rajeevan v. State of Kerala (2008 (4) KHC 70) in support of the contention that when a non-bailable arrest warrant is issued against an accused person, his remedy is not to file an application for anticipatory bail. 11. In the affidavit filed by Sri.Pawan Kumar, the Sub Inspector of Police, Rajpura City Police Station, it is stated that during the investigation, two accused persons, namely, Amardeep Singh and Rahul were arrested by the police and they are in judicial B.A. NO. 1163 OF 2010 :: 9 :: custody. It is stated that the investigation revealed "a deep rooted conspiracy of committing grave white collar crime of embezzlement of crores of rupees". To unearth the fraud, custodial interrogation of the petitioners is necessary and inevitable. In the affidavit, it is also stated that the Judicial Magistrate, Rajpura, Patiala District, Punjab, having jurisdiction of the matter had issued non-bailable warrants to arrest the petitioners. Annexures R2(a) and R2(b) are said to be the copies of the arrest warrants. It is also stated that Samdeep Mohan Varghese has fled to Singapore and it is reasonably apprehended that the petitioners are also likely to abscond. 12. The learned Additional Advocate General, State of Punjab submitted that the petitioners are also involved in the multi crore scam and they have also played their own part in the crime. It is pointed out that the petitioners, who filed the Bail Application on 19.2.2010, could secure a copy of the First Information Report, which was registered on 5.2.2010. Still the petitioners have not surrendered

before the appropriate court and sought for reliefs. That shows that they are not prepared to co-operate with the investigation. Custodial interrogation of the petitioners is essential in the case. This is not a fit case for exercising the discretionary B.A. NO. 1163 OF 2010 :: 10 :: jurisdiction under Section 438 of the Code of Criminal Procedure by this Court. 13. Sri. Vijayabhanu submitted that Annexures R2 (a) and R2 (b) warrants are not in Form No.2 appended to the Code of Criminal Procedure. The warrant is not addressed to any particular police officer within the jurisdiction of the learned Magistrate. In Annexure R2(a) warrant, the name of the accused is shown as "Doctor son in law of Mariama R/o Cochin". In Annexure R 2(b) warrant, the name of the accused is shown as "Mrs.Sareen Daughter of Mariama R/o Cochin". In the warrants, it is noted thus: "Accused may not be arrested in case any anticipatory bail or arrest stay order passed by any competent authority is produced by the accused." The counsel submitted that on 21-2-2010, the first petitioner was dragged out from Lakhsmi Hospital by the police officer from Punjab and in spite of showing to him the interim order passed by this Court on 19.2.2010, the first petitioner was not released. He was forcibly taken to the office of the City Police Commissioner. Later, he was allowed to go. 14. Sri.Vijayabhanu, learned counsel for the petitioners B.A. NO. 1163 OF 2010 :: 11 :: submitted that the petitioners have no objection in searching their residence and office premises by the Punjab police at any time, even before disposing the Bail Application. He submitted that the Bail Application need be disposed of only after such search, if the Court so orders. The learned counsel appearing for the de facto complainant

and the learned Additional Advocate General did not make any positive response to this submission. 15. It is apposite to point out that the Bail Application and the application filed by the petitioners to raise additional grounds do not contain the relevant facts. The Bail Application is cryptic and bereft of necessary facts and details. The right of the accused not to disclose his defense does not extend to such an extent that he need not state the relevant facts in the Bail Application. If the petitioner in a Bail Application relies on any particular fact not borne out by the Case Diary, necessarily, it has to be pleaded by him. It cannot be said that the accused is entitled to put forward anything on facts in the arguments without any supporting data on record. Any contention can be raised on the basis of the factual matrix available. However, on undisclosed factual background, I do not think that the accused is entitled to put forward imaginary arguments, without any B.A. NO. 1163 OF 2010 :: 12 :: risk of contradiction or without committing anything. Facts especially within the knowledge of the party should be pleaded by him. It should not be misunderstood that the above view is to the effect that Bail Application should contain the pleadings as in an Appeal or Revision in a civil case. But the necessary facts, not borne out by the FIR, remand report and Case Diary, on the basis of which the petitioner in a Bail Application desires the court to grant relief, should be stated by him in the Bail Application. However, in the facts and circumstances of the case, I do not propose to decline relief to the petitioners on this ground. 16. Now, I shall consider the contention that the Bail Application is not maintainable, since the arrest is sought to be made on the basis of a warrant issued by a competent Court. In Bharat Chaudhary V. State of Bihar: (2003 (3) KLT 956= (2003) 8 SCC 77), the Supreme Court held

that Section 438 of the Code of Criminal Procedure can be invoked even after charge sheet is filed and cognizance is taken. It was held: "From the perusal of this part of Section 438 of CrPC, we find no restriction in regard to exercise of this power B.A. NO. 1163 OF 2010 :: 13 :: in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. " 17. In Vineeth Somarajan V. State of Kerala: 2009 (3) KLT 576 = 2009 (3) KHC 471, after filing the charge sheet, non bailable warrant was issued by the court for the arrest of the accused. The accused moved the High Court under Section 438 Cr.P.C. Referring to Bharat Chaudhary's case and Salauddin Abdulsamd Shaikh V. State of Maharashtra (1996) 1 SCC 667, it was held: "6. It is true that going by the decision in Bharat Chaudhary's case, there is no bar in entertaining an application under S.438 of the Code of Criminal Procedure after the charge sheet is filed. However, it is not a general rule that the power under S.438 of the Code of Criminal Procedure could be exercised in each and every case, where charge sheet is filed. Exceptional circumstances may arise in which exercise B.A. NO. 1163 OF 2010 :: 14 :: of the power by the Sessions Court or the High Court under S.438 may be warranted and the fact that the charge sheet was filed in the case would not be a bar to entertain such an application under S.438 of the Code of Criminal Procedure. Ordinarily, when a charge sheet is filed, it

is for the Court which has to try the case that has to deal with the application for regular bail. Whether bail should be granted in the facts and circumstances of the case, has to be considered by the Court which is expected to try the case." 18. In Vineeth Somarajan's case, warrant was issued after the charge sheet was filed. In Rajeevan V. State of Kerala : (2008 (4) KHC 70), proceedings under Sections 82 and 83 Cr.P.C. were taken against the accused and non bailable warrant was issued. In the present case, it would appear that warrant was issued by the Court on the request of the investigating officer pending investigation. In the light of the decisions referred to above, I am not inclined to accept the contention put forward by Sri.Ramkumar that the Bail Application is not maintainable since the petitioners are sought to be arrested in execution of a non bailable warrant. 19. In C.I.Mathew V. Government of India: (1984 KLT 942), B.A. NO. 1163 OF 2010 :: 15 :: Justice Bhaskaran Nambiar considered the question whether the High Court has power to grant anticipatory bail in respect of offences committed outside the jurisdictional limits of that High Court and held in the affirmative. It was held thus: "11. If arrest is sought to be prevented, the place where the arrest is effected gives reasonable nexus for the exercise of jurisdiction under S.438. The court, whether it is the High Court or the Sessions Court, within whose jurisdiction the arrest is sought to be effected can naturally have jurisdiction to decide whether it thinks fit to grant anticipatory bail. The arrest is made with reference to a crime, at the behest of the police or Magistrate within whose jurisdiction the offence is alleged to be committed. Thus the court within whose jurisdiction the offence is alleged to have been committed is, without doubt, a court competent to exercise the powers to grant anticipatory bail.

12. If thus there are two courts of concurrent jurisdiction empowered to grant anticipatory bail,-- the court within whose jurisdiction the offence is committed, and the court within whose territory the person is sought to be arrested - conflict of decision has to be avoided and inherent limitation is thus implicit in the exercise of this jurisdiction under S.438. The anticipatory bail B.A. NO. 1163 OF 2010 :: 16 :: granted by the High Court or Sessions Court within whose jurisdiction the offence is committed will enure beyond the territorial limits of that court as the arrest sought to be made is within reference to that specific crime or offence and the police can pursue the offender beyond its jurisdiction to enforce the arrest. In granting anticipatory bail in a State where the applicant is sought to be arrested, the High Court naturally has to restrict the relief and direct that in the event of the appellant's arrest in that State, he will be released on certain conditions. In the latter case, the High Court will not extent relief to arrests made beyond that State. In this view the residence of the accused may not be a relevant factor to fix jurisdiction for this purpose." 20. In the light of the decision of the Punjab and Haryana High Court in Ravinder Mohan V. State of Punjab: (1984 Crl.L.J. 71) taking a contrary view, the question was considered by a Division Bench of this Court in Madhusoodanan V. Superintendent of Police: (1992 (2) KLT 83). The Division Bench confirmed the decision in C.I.Mathew V. Government of India: (1984 KLT 942). 21. In Shree Baidyanath Ayurved Bhawan Private Limited V. State of Punjab and others: (2009) 9 SCC 414), it was held: B.A. NO. 1163 OF 2010 :: 17 :: "For the purpose of grant of anticipatory bail, the Court of Session or the High Court must take into consideration the ingredients

therefor as laid down in Section 438 of the Code of Criminal Procedure. Ordinarily, an order granting anticipatory bail should not be for an indefinite period, particularly when the FIR had been in a police station of another State." 22. In the light of the decisions referred to above, there cannot be any doubt that this Court has jurisdiction to entertain the Bail Application and grant appropriate relief. 23. The next question to be considered is whether the petitioners are entitled to the reliefs prayed for. The petitioners are doctors. They are working at Ernakulam. They have permanent abode. It cannot be believed that they would make themselves scarce, if bail is granted. The petitioners have expressed their readiness to co-operate with the investigation. They even expressed their willingness for a search of their residence and office premises pending consideration of the Bail Application. There was an attempt to arrest the first petitioner. It is stated that he was dragged out from B.A. NO. 1163 OF 2010 :: 18 :: the hospital where he was working. The interim order passed by this Court was in force at that time. The warrant for arrest specifically states that the accused shall not be arrested if an order of the nature mentioned therein is produced by the accused. The first petitioner states that though he produced the interim order passed by this Court, the police officer from Punjab tried to arrest him and humiliate him. 24. In the facts and circumstances mentioned above, I am of the view that the petitioners are entitled to relief in this Bail Application. The Bail Application is disposed of as follows: The petitioners, if arrested within a period of two months from today, within the State of Kerala, on the basis of the warrants of arrest issued by the Sub Divisional Judicial Magistrate, Rajpura, Punjab in Crime No.30 of 2010 of Rajpura City Police Station, or if arrested within a period of two months, within the State of Kerala, by the investigating officer or any other police officer in connection with Crime No.30 of 2010 of Rajpura

City Police Station, they shall be released on bail on their furnishing bond for Rs.25,000/- each with two solvent sureties for the like amount to the satisfaction of the Chief Judicial Magistrate, Ernakulam. In the event of their arrest, the B.A. NO. 1163 OF 2010 :: 19 :: petitioners shall also surrender their passports before the Chief Judicial Magistrate, Ernakulam. If any of the petitioners does not hold an Indian Passport, he/she shall file an affidavit to that effect before the Chief Judicial Magistrate, Ernakulam. The petitioners shall make themselves available for interrogation by the investigating officer, in the office of the City Police Commissioner, Ernakulam, on such date or dates as intimated by the City Police Commissioner, Ernakulam. The petitioners shall appear before the Sub Divisional Judicial Magistrate, Rajpura, within two months, unless otherwise it becomes unnecessary in view of an order passed by any Court having jurisdiction. The Registry will communicate a copy of this Order to the Chief Judicial Magistrate, Ernakulam. Hand over copy to all the counsel appearing in the case. (K.T.SANKARAN) Judge ahz/