Mens Rea For Cyber Terrorism And Espionage Not Proved; Bombay High Court Acquits Ex-BrahMos Engineer Of Cyber Terrorism, Leaking Info To Pakistan ; Retains Conviction For Negligent Handling Of Official Secrets
Sanchayita Lahkar
The High Court of Judicature at Bombay at Nagpur, Division Bench of Justice Anil S Kilor and Justice Pravin S Patil on Monday set aside the life sentence and major convictions imposed on a former Senior System Engineer of BrahMos Aerospace for alleged cyber terrorism and spying, arising from his online interaction with Pakistan-based fake social media profiles and the installation of malware linked to access of sensitive missile-related files. Holding that the prosecution had not proved any intention to threaten the sovereignty or security of India, the Court vacated the graver findings under the Information Technology Act and the Official Secrets Act, 1923, while sustaining his conviction under Section 5(1)(d) of the Official Secrets Act for failing to exercise reasonable care over official files stored on his personal laptop.
The appeal challenged the conviction of an engineer employed with a defence manufacturing entity, who had been found guilty by the trial court of offences under Section 66-F of the Information Technology Act, 2000 and Sections 3(1)(c), 5(1)(a)–(d), and 5(3) of the Official Secrets Act, 1923.
The prosecution case originated from information received by the Anti-Terrorist Squad that two Facebook accounts operated from Pakistan were attempting to obtain sensitive defence information from Indian personnel. During investigation, the appellant’s communication with these accounts and with another LinkedIn profile was examined, and his personal laptop was seized, revealing documents designated as secret or restricted, as well as malware allegedly capable of data extraction. The prosecution asserted that the appellant had copied classified missile-related material from his official computer during his posting in Hyderabad and had exposed it to foreign entities.
The defence contended that the documents were given to him lawfully by a superior for project work and that no intentional disclosure or transmission had occurred. Statutory provisions relating to cyber-terrorism, spying, and wrongful communication of information were invoked. Evidence from multiple witnesses was recorded, including technical officers, investigating officers, and supervisory personnel.
The Court observed that Section 66F requires mens rea, noting that the provision uses expressions “with intent to threaten the unity, integrity, security or sovereignty of India” and “knowingly or intentionally penetrates or accesses a computer resource”, which make the existence of a guilty mind essential. It further recorded that Sections 3(1) and 5(1)(a), (b), (c) of the Official Secrets Act also require intentional conduct, as the expressions “for any purpose prejudicial to the safety or interests of the State” and “wilfully communicates” indicate.
The Court stated that Section 5(1)(d) of the Official Secrets Act rests on negligence, as it uses the phrase “fails to take reasonable care”, which does not demand proof of intention. It recorded that “reasonable care” is associated with negligence, relying on the definition in Black’s Law Dictionary.
Assessing the evidence, the Court observed that the desktop used by the appellant contained certain documents marked secret; however, cross-examination showed that the appellant worked under a superior officer who was authorised to have these documents and who supplied data to trainees. The Court stated that this superior was not examined and that “the possibility that Alan Abraham gave the alleged secret documents… cannot be ruled out.” It recorded that no evidence showed the appellant’s entry in the system history for insertion of pen drives or hard disks.
The Court further stated that initial information pertained to a honey-trap attempt, not deliberate transmission of secret information. Witnesses admitted that chats with the LinkedIn profile were related to job opportunities and that “Nishant has not sent any departmental documents on the LinkedIn app” and had no telephonic contact with the alleged foreign profiles.
The Court recorded that much of the missile-related information was already in the public domain and that the prosecution failed to establish intentional communication to any foreign entity. It observed that the accused had an “outstanding” service record and “none of the conduct of the appellant was ever found against the national interest”. It concluded that the prosecution failed to prove the required mens rea for offences under Section 66F and Sections 3(1), 5(1)(a), (b), (c) and 5(3), and that only negligence under Section 5(1)(d) was made out.
The Court stated: “The appeal is partly allowed. The impugned judgment and order dated 03/06/2024 passed by Additional Sessions Judge-1, Nagpur in Sessions Case No.726 of 2021 is hereby quashed and set aside.”
“The conviction and sentence, imposed upon the appellant, for the offences punishable under Section 66F of the Information Technology Act, 2000, Section 3(1)(c) of the Official Secrets Act, 1923 and Section 5(1)(a), (b) and (c) and 5(3) of the Official Secrets Act, 1923 is set aside. The conviction and sentence, imposed upon the appellant, for the offence punishable under Section 5(1)(d) of the Official Secrets Act, 1923, is maintained.”
“Set off be given to the appellant under Section 428 of the Code of Criminal Procedure. The Criminal Appeal is disposed of accordingly. Pending application(s), if any, shall stand disposed of.”
Advocates Representing The Parties
For the Petitioners: Shri Sunil Manohar, Senior Advocate a/b Shri C.B. Barve, Advocate
For the Respondents: Shri S.S. Doifode, Additional Public Prosecutor a/w Shri A.B. Badar, APP
Case Title: Nishant S/o Pradeep Agrawal vs. Anti-Terrorist Squad, Lucknow & Anr.
Neutral Citation: 2025: BHC-NAG:13335-DB
Case Number: Criminal Appeal No. 303 of 2024
Bench: Justice Anil S. Kilor and Justice Pravin S. Patil
