In CRM-M-23610-2023-PUNJ HC- Exponential growth in technology & AI has transformed identification techniques remarkably, says P&H HC while granting bail to Chinese cyber thug involved in duping people through Loan App after considering his 8 months of incarceration
Justice Anoop Chitkara [22-05-2023]

Read Order: Wan Chenghua Vs. State Of U.T. Chandigarh 

Tulip Kanth

Chandigarh, May 23, 2023:The Punjab and Haryana High Court has granted bail to an accused who was allegedly involved in duping and threatening gullible people through the Hugo Loan app and transferring money to overseas accounts after considering his incarceration period of 8 months while also observing that it is for the Government to take appropriate measures empathizing the people’s suffering and the global tarnishing of India's image by these cyber-thugs. 

“The exponential growth in technology and artificial intelligence has transformed  identification techniques remarkably. Voice, gait, and facial recognition are incredibly  sophisticated and pervasive. Impersonation, as we know it traditionally, has virtually  become impossible. Thus, the remedy lies that whenever a judge or an officer believes  that the accused might be a flight risk or has a history of fleeing from justice, then in such cases, appropriate conditions can be inserted that all the expenditure shall be incurred to trace him, shall be recovered from such person, and all the State shall have a lien over their assets to make good the loss”, Justice Anoop Chitkara said.

The complainant informed the police that he had received an SMS on his mobile number containing a URL link and as soon as he clicked on it, Hugo's loan application was installed. The application sought permission to access all his contacts and gallery on the cell and the complainant granted the permission. 

The application showed that he was eligible for Rs 3500 loan. However, the complainant did not apply for a loan. Later, he received threatening calls and SMS demanding money and intimidating him that they had downloaded photos from his phone’s gallery and proclaimed that they would be sending obscene morphed pictures to all his contacts. Feeling scared, he transferred Rs 2045 and Rs 3500 but the accused continued to threaten him and demanded more money.

The Bench noted that the accused found system and human vulnerabilities and, with the help of his Indian agents, took advantage of significant loopholes. However, it was opined that keeping the people in jail for an indefinite period is not a panacea and the Court has to give regard to an upper limit for pre-trial custody.

The petitioner had averred that he is a permanent resident of the People's Republic of China with no relatives or community in India. It was observed by the Bench that the petitioner had been in custody since September 11, 2022 but almost all his co-accused, with lesser custody, stood released on bail. 

“Given the penal provisions invoked viz-a-viz pre-trial custody of more than eight months, coupled with the quality of evidence, the prima facie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability of further pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order”, the Bench said.

Referring to section 445 CrPC which mandates an accused to execute bonds by officers and Courts, with or without sureties, the Bench opined that sec.445 applies to all bails, including those granted under sections 389, 390, 397, 436, 437, 438, and 439 CrPC. The similarity between Sections 436 to 439 of the CrPC is that all these relate to bail, whether by an officer empowered to release on bail in bailable offenses or release under bail granted by Courts. Furthermore, S. 445 CrPC provides for depositing a sum of money or Government promissory notes in all bonds except the case of a bond for good behavior.

Noting that there is an absence of comprehensive data demonstrating the role of sureties in bringing the accused to justice, the Bench said, “Mere recovery of the surety amount by penalty is not equivalent to producing the accused to face trial.”

The Bench concluded the matter by saying, “In this era when the knowledge revolution has just begun, to keep pace with exponential and unimaginable changes the technology has brought to human lives, it is only fitting that the dependence of the accused on surety is minimized by giving alternative options.”

Thus, granting the relief of bail to the petitioner, the Bench also asked him to furnish a personal bond of Rs 25,000 and to give two sureties of Rs 1 lakh each to the satisfaction of the concerned court.