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 30^TH 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

References :

1. “Special law.” The Merriam-Webster.com Legal Dictionary, Merriam-Webster Inc., https://www.merriam-webster.com/legal/special%20law. Accessed 14 January 2020.

Online impersonation and Sending bomb hoax email - Section 66D Cybercrime

Section 66(D) Cyber Crime - THE MYSTERY BEHIND HOAX MAIL SOLVED –ONE HELD

                         On 20-04-2017, the sleuths of Commissioner’s Task Force, West Zone team with the assistance of S.R Nagar police, on credible information made sustained efforts and solved the mystery behind hoax mail which was generated from Hyderabad.

  Details of apprehended Accused :-

Motaparthi Vamshi Krishna @ vamshi chowdary S/o. M.A.sV. Prasad, age. 32 yrs, Occ. Transport agent  R/o. Flat no.G-1, TP Sanjana  Amrutha Residency, Miyapur, R.R.Dist, N/o.  Dendullur (village & Mandal), West Godavari Dist, A.P.

 Brief facts

On 15-04-2017 at 1647 hours commissioner of police,Mumbai received a mail from a mail ID ununn0801@gmail.com  claimed to be woman in the email and stated that she overheard six men chating in a hotel and stating that all 23 people have to split from here and board flights in three cities i.e Hyderabad, Chennai and Mumbai to hijack planes at a time tomorrow. 

On the tip of Mumbai Police alerted and sent the information to the concerned Airport Security agencies about a gang planning to hijack flights from three Airports.

  Basing on the information CISF pressed into service and quick reaction commando teams under taken sanitisation drill at Airport and Airlines have been asked to remain extra vigilant. Extra care has been given to passenger checks, baggage scanning, pre embarkation checks and started special patrols to thwart any bid to storm the Airport.    

As a mail generated from Hyderabad, considering the seriousness and sensitivity of the issue, the Commissioner of Police, Hyderabad instructed the Task Force team to   check the veracity of the mail. 

During the enquiry traced the IP address and found it is a net cafe at Madhura Nagar, S.R.Nagar styled as “E netzone” and enquired with the owner of net cafe and found the register of the visitors and filtered eight persons at the time of generating mail. Since the net cafe did not have CCTV footages and there were no proper records maintained at net cafe centre, The Task Force Police made sustained efforts based on the available of CC footage nearby net cafe and lead to the identification of   accused by name Vamsi Krishna.

During the interrogation the accused revealed that he used to chat with his girlfriend who stays at Chennai. Few days back she proposed a trip to Mumbai & Goa. As he is facing financial problems, he unable to bare expanses for their tour,  he requested her to withdraw the trip proposal, but she denied his request, forced him to go to trip to Mumbai & Goa.   In this process to cancel the trip, he hatched a plan to make her believe that flights have been cancelled because of High Alert at airports.

                            In this connection he created a fake flight booking Ticket on her name dt. 16-04-2017 from Chennai to Mumbai, sent the fake ticket to his girl friend through his mail Id my3softcreations@gmail.com to her mail id on 15-04-2017 to believe her.  If she knows about the fake ticket, she will avoid him.  On that he went to one internet centre styled as “E Net zone” at Madhura Nagar, SR.Nagar on 15-04-2017 at about 1600 hrs. In this net zone he created a fake mail id “ununn0801@gamil.com”  and secured the Mail Ids of Mumbai police commissioner and others and prepared fake message as ‘’hi sir am female here am doing this mail frim Hyderabad as i don’t want to revel my details couse am a female and scared of issues, and mailing u this couse in the after noon around 2pm while having lunch there were 6 guys talking those guys are musclims, they were talking abt plane hijack tommarrow in Hyderabad chennai and Mumbai airport they were talking very slowly but unfortunately i heard few conversations abt this, they were saying all us 23 people have to split from here and have to board flights in 3 cities and hijack them at a time. They spoke some other things also but i couls not hear them as i heard only these few sentences from them, i dont know do am i doing correct or not and they are true or not but heard this so kindly go through this and as i informed this as a duty and a citizen of india and pls dont make me to get into issues’’

On further questioning he revealed that   previously he  was involved in two cases Cr.No. 411/2010, U/s. 420, 458,506 R/w. 34 IPC of S.R.Nagar PS & Cr.No. 32/2013, U/s. 66(D) of ITA Act-2008 & 420 IPC of CCS, Cyber crimes.

The apprehended accused along with seized material being handover to SHO, S.R.Nagar PS for taking further action under 66D of IT act and sec 419, 182 IPC.

Old headless CAT Going TDSAT Coming, The IT Act, 2000 is amended

Old headless CAT Going TDSAT Coming, The IT Act, 2000 is amended

By Advocate Prashant Mali, Cyber Law Expert

The government’s in response to a February 2015 report of a parliamentary standing committee that noted the absence of uniformity in the conditions of service of tribunals.  Government planned a large-scale reshuffle of tribunals, the government sought to reduce the number of these tribunals and bring parity in the service conditions of their officials.

CAT (Cyber Appellate Tribunal) From 2011, has barely been functioning. It still pays out salaries to its employees but no judicial order has been passed nor has any case been heard for the last five years. A CAG audit had noted that after the retirement of the CAT’s last chairperson in June 2011, there has been no replacement appointed as of June 2016. However, members  and other staff continued to render services in the CAT since then and expenditure of Rs. 27.64 crore were incurred on its establishment for the period from 2011-12 to 2015-16 without carrying out its primary business of hearing and disposal of appeals. After a huge big GAP the matters now are transferred to National Lok Adalat on 8th April 2017 from the Cyber Appeallate Tribunal.

The IT Act, 2000 is getting amended by The Finance Bill 2017, following are the changes

A new clause (da) is added under Section 2, in sub-section(1) (da) “Appellate Tribunal” means the appellate tribunal referred to in sub-section(1) of section 48

2.  The definition of “Cyber Appellate Tribunal” clause(n) under Section 2, in sub-section(1) is omitted

In section 48 of The Information Technology Act,2000

(i)            For the marginal heading, the following marginal heading shall be substituted, namely:-

“Appellate Tribunal”;

(ii)          For sub-section (1), the following sub-section shall be substituted, namely:-

“(1) The Telecom Disputes Settlement and Appellate Tribunal established under section 14 of the Telecom Regulatory Authority of India Act, 1997 shall, on and from the commencement of Part XI of Chapter VI of the Finance Act, 2017, be the Appellate Tribunal for the purposes of this Act and the said Appellate Tribunal shall exercise the jurisdiction, powers and authority conferred on it by or under this Act.”

(iii)         In sub-section (2), for the words, brackets and figure “shall also specify, in the notification referred io in sub-section (1)”, the words “shall specify, by notification” shall be substituted;

(d)      Sections 49, 50, 21, 52, 51A, 52B, 52C, 53, 54 and 56 shall be omitted.

(e)      for section 82, the following section shall be substituted, namely:-

“82.    The controller, the Deputy Controller and the Assistant Controllers shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code”;

(f)        in section 84, for the words “the Chairperson, Members, adjudicating officers and the staff of the  Cyber Appellate Tribunal”, the words “and adjudicating officers” shall be substituted;

(g)      in section 87, in sub-section (2), clauses (r), (s) and (t) shall be omitted;

Four important changes in Finance Bill 2017 with regards to Tribunals are:

1.    The Competition Appellate Tribunal will now be merged with the National Company Law Appellate Tribunal.

2.    The Cyber Appellate Tribunal and the Airports Economic Regulatory Authority Appellate Tribunal will be merged with the Telecom Disputes Settlement and Appellate Tribunal.

3.    The Industrial Tribunal is to also perform the functions of the Employees’ Provident Funds Appellate Tribunal.

4.    The Copyright Board will be merged with the Intellectual Property Appellate Board.

My Comments & Suggestions for TDSAT:

I welcome the move as the dud “Cyber Appellate Tribunal” never worked and was a black spot on cyber related litigation's. I suggest changes would be

A.   Having a Cyber expert as a full time member in the tribunal or atleast as amicus curae.

B.   Having a fixed date for the bench to sit

C.   Having the bench of TDSAT sitting in cities like Mumbai, Bangalore, Hyderabad e.t.c

D.   TDSAT should use the same online platform which Cyber Appellate Tribunal was using for filing of online appeals with documents.

E.   TDSAT should do some extra work to be a vigilante on all the state Adjudication officers, which are as of date in deep lumbar state.

F.    TDSAT should lead the training and awareness initiative in the cyber area across the country.

G. There should be clarity of appeals which lie from the TDSAT, whether to a High Court or directly Supreme Court