Direction To Return Seized Devices Can’t Be Granted In Confidential Data Theft Case When Purity Of Procedure Adopted By Third-Party Forensic Expert Is Attacked: Bombay High Court
The High Court was considering the question of return of devices to the defendants as their devices were seized in pursuance of ex-parte ad-interim order.
Justice Manish Pitale, Bombay High Court
The Bombay High Court has held that a direction to return seized devices cannot be granted in a confidential data theft case when questions are raised on the purity of procedure adopted by a third-party forensic expert. E & Y was the third-party expert appointed by the Court.
The High Court was considering the question of return of devices to the defendants as their devices were seized in pursuance of ex-parte ad-interim order.
The Single Bench of Justice Manish Pitale said, “It is in the light of the nature of objections being raised for the first time today before this Court with regard to the very neutrality of the third party forensic expert, that this Court is constrained to consider the prayer made on behalf of the defendants in that light. The purity of process and the procedure adopted by the third-party forensic expert, while assisting the Court Receiver, is itself under attack and in that light, a direction to return the devices to the defendants cannot be granted. More so, when the purport of the serious allegations made by the said defendants can be to the effect that data foreign to the devices may have been introduced during the process of mirroring. In such a situation, it is necessary to keep the devices in the custody of the Court Receiver.”
Advocate Rashmin Khandekar represented the Plaintiffs, while Advocate Hiren Kamod represented the Respondents.
Factual Background
The plaintiffs had filed a criminal complaint against the defendants. The plaintiffs had claimed that some of the defendants, being their ex-employees, had breached confidentiality, and precious information was clandestinely and illegally exploited by them in conspiracy with each other. The High Court had earlier passed an ex-parte ad-interim order after being convinced that the plaintiffs had made out a strong prima facie case in their favour for the appointment of a third-party forensic expert to assist the Court Receiver. Specific directions were issued to seize the devices of the defendants and to prepare mirror copies with the assistance of the third-party forensic expert. Accordingly, the expert was appointed, and thereupon, the order was executed. The Court had permitted the devices to be handed over by the Court Receiver to the third-party forensic expert, who was then permitted to carry out the aforesaid exercise of mirroring data in its premises.
Arguments
It was the case of the defendants that since the third party forensic expert, assisting the Court Receiver of this Court in executing the ex-parte ad-interim order, had already completed the exercise of mirroring the data in the devices, upon deleting information claimed to be confidential information by the plaintiffs, the devices ought to be returned to the defendants.
On the contrary, the counsel for the applicants/plaintiffs submitted that since the plaintiffs filed a criminal complaint against the defendants and further steps to be taken in that regard might entail the seizure of the devices of the defendants, returning the said devices to the defendants would not be appropriate.
Reasoning
As per the Bench, the plaintiffs were justified in relying upon the final report submitted by the third party forensic expert, to contend that return of the devices, at this stage itself, particularly in the light of the nature of objections being raised and the allegations being made against the third party forensic expert may prejudice the plaintiffs even while the application under Order XXXIX, Rules 1 and 2 of the CPC is taken up for consideration.
The Bench held that a direction to return the devices to the defendants cannot be granted in light of the nature of objections being raised about the very neutrality of the third-party forensic expert. The Bench noted the serious allegations made by the said defendants to the effect that data foreign to the devices may have been introduced during the process of mirroring. “In such a situation, it is necessary to keep the devices in the custody of the Court Receiver. In fact, this is now necessary to properly consider and examine the serious allegations made for the first time today on behalf of the said defendants and it would assist them also in making good such allegations.”
The Bench found substance in the contention raised on behalf of the plaintiffs that while about four months had already elapsed from the date when the ex-parte ad-interim order was passed and executed against the defendants, no steps had been taken to file replies and to contest the application on merits. “At this stage, it would not be appropriate to arrive at any findings with regard to the same as the said aspect has to be kept open when the application under Order XXXIX, Rules 1 and 2 of the CPC is taken up for consideration on merits, but, a perusal of the said report does indicate a prima facie case in favour of the applicants/plaintiffs to claim that the serious allegations levelled against the defendants appear to be substantiated by the contents of the final report”, it added.
It was found that the devices submitted by the defendant indicated that data had been deleted including e-mails etc. and that, even when the devices were submitted to the third party forensic expert, attempts were made to log-in into e-mail accounts and that the conduct of the defendant, as found by the third party forensic expert. The Bench further held, “Considering the aforesaid conduct of defendant No.5, it cannot lie in his mouth that since the devices that were reluctantly and eventually submitted before the third party forensic expert did not contain any ‘offending data’ although there were traces of deletion of data from such devices, this Court may consider returning the said devices. It can also not lie in the mouth of such a defendant that continued retention of such devices would amount to punitive action against such defendant.”
Considering that serious allegations of breach of confidentiality by the defendants in conspiracy with each other had been made, which allegedly caused heavy losses to the plaintiff, the Bench held that the prayer made on behalf of the defendants for returning their devices could not be entertained at this stage. Listing the application for further consideration on June 10, 2025, the Bench allowed more defendants to be added by way of amendment to contest the contentions being raised on behalf of the plaintiffs.
Cause Title: H and K Rolling Mill Engineers Private Limited and another v. Dipak Balshiram Kale and others (Case No.: Interim Application (L) No.37933 of 2024)
Appearance:
Applicants/Plaintiffs: Advocates Rashmin Khandekar, Anand Mohan, Munaf Virjee, Tirtha Mukherjee, AMR Law
Respondent: Advocates Hiren Kamod, Prem Khullar, Rashi Thakur, Aniket Bomble, Sanjay P. Shinde, Pranit Kulkarni, Anil Shete, Dr. Abhinav Chandrachud,
EY Forensic Expert: Amit Rahane (through VC), Partner