When IT Act, 2000 is applied, IPC cannot be applied by Police in the FIR
IT Act is a Special Act: case laws By Advocate (Dr.) Prashant Mali
Sharat Babu Digumarti Vs. Govt. of NCT of Delhi.
MANU/SC/1592/2016.
Gagan Harsh Sharma and Ors. Vs. The State of Maharashtra and Ors. MANU/MH/3012/2018.
Ajay Murlidhar Batheja Vs. The State Of Maharashtra and Ors. MANU/MH/ /2018.
Special Law: A law that applies to a place or especially to a particular member or members of a class of persons or things in the same situation but not to the entire class and that is unconstitutional if the classification made is arbitrary or without a reasonable or legitimate justification or basis 1.
The
Indian Parliament enacted in the Fifty-First Year of the Republic of India, an act called the Information Technology Act, 2000. This act is based on the
resolution A/RES/51/162 adopted by the General Assembly of the United Nations
on the 30TH January 1997 regarding the model law on the electronic
commerce earlier adopted by the United Nations Commission on International
Trade Law (UNCITAL) in its twenty-ninth session.
The Act is here to protect and provide certain means of redressal even to the owner
of a single computer, computer system or computer network located in India
which has been violated by any person. The act is the first step to give
necessary confidence and protection to the said owner.
The
said Act is a special act as it is said section 81 of the act which reads as
follows :
Act to have overriding effect.-“The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law for
the time being in force. Provided
that nothing contained in this act shall restrict any person from exercising
any right conferred under the Copy Right Act, 1957 or the Patents Act , 1970(39
of 1970)”.
In
the case of Sharat Babu Digumarti v
Government (NCT of Delhi) [(2017) 2 SCC 18]
the accused were charged with offences under Section 67 of the IT Act
and
Section 292 of the IPC. The question before the Supreme Court was whether the
accused who was discharged under Section 67 of the IT Act could be prosecuted under
Section 292 of IPC. Placing reliance on non-obstante provisions under Section
81 of the IT Act and Section 67A and 67B, it was held that charge under Section 292
could not survive. The decision was on the basis that Sections 67, 67A and 67B
was a complete code regarding offence concerning publishing and transmitting
obscene material in electronic form and non-obstante provision under Section 81
makes IT Act a special law that will prevail over the general law, IPC.
On
26 October 2018, a two-judge bench of the Bombay High Court vide its judgment
in Gagan Harsh Sharma And Anr vs The State Of Maharashtra And Anr on 26
October, 2018 (Criminal Writ Petition No 4361 of 2018) held that when the offence is sufficiently covered under the provisions of the Information
Technology Act, 2000 (IT Act), the IT Act will apply as lex specialis to
the exclusion of the Indian penal code, 1860 (IPC). The Bombay High Court vide
its judgment quashed and set aside the First Information Report (FIR) insofar
as the investigation into the offences punishable under the IPC were concerned,
on the basis that the ingredients of offences alleged under IPC were the same as
compared to the ingredients of the offences alleged to have been committed
under IT Act.
I Got this Bail in the sessions court. Police often apply IPC Section 379 in data theft cases along with Section 43 & 66 of the IT Act,2000 .
I argued along with above case laws for non-applicability of IPC S379 which was only added by police to make the offense Non-Bailable, special Act i.e IT Act,2000 when applied IPC sections do not apply. Court has accepted my argument on the merits of Law and granted the Bail
Bail Order of sessions court - Download Link
In
the case of Ajay Murlidhar Batheja vs The State Of Maharashtra And Anr on 26
October 2018 (CRIMINAL APPLICATION
NO.1217 OF 2018) the Bombay high court held “We are
therefore not inclined to quash the said FIR as far as the offences under
the Information Technology Act are concerned, however, we hold that the
invocation and application of the provisions of the Indian Penal Code and
specifically, Section 420, is not sustainable in light of the judgment Sharat
Babu Digumarti v/s. Government (NCT of Delhi) (Supra)”.
Thus we
can see that the provisions of this Act will prevail notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.
Nevertheless,
by virtue of new proviso the scope of the overriding effect shall not restrict
any person from exercising any right conferred in Copy Rights Act,1957 or the
Patents Act,1970. The idea behind the new proviso is to protect the rights of
intellectual property rights holder under the Copyright At or the Patents Act.
Conclusion:
It is often found that police in cybercrime matters to make the offence nonbailable will add 379 or 420 or 408 of the Indian Penal Code. The above case laws clearly indicate that when sections of the IT Act,2000 are applied sections from the general law namely IPC should not be added.
By Advocate (Dr.) Prashant Mali [MSc (Computer. Sci.) LLB, LLM, Ph.D. in Cyber Law]
Mobile: +919821763157
Email: cyberlawconsulting@gmail.com
Twitter: @AdvPrashantMali
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ReplyDeleteit is a very useful article thanks for sharing this information it is a very helpful site Matrimonial lawyer for supreme court of India
ReplyDeleteBut there are some contingency where some recovery and discovery are to be made as IT act makes offence bailable where punishment is upto 3 years, without applying IPC sections the investigation may be in vein or futile as investigation officer will not get sufficient opportunity to do custodial interrogation of suspect accused...
ReplyDelete