Can ITA-2000 Chapter XI Crimes be Compounded?
With increasing number of Cyber Crime Cases coming up for
judicial review including cases like Bazee.com, there is a discussion brewing in
legal circles about the "Compoundability of Offences under ITA-2000".
In the interest of a good academic discussion coming forth in
this aspect, this preliminary piece of article is presented.
Compounding (Compromising) is a concept that is meant
to allow an affected party condone the accused and arrive at a compromise
solution so that further the legal proceedings can be dropped. It is not equal
to withdrawal of a charge or a complaint but an agreement not to pursue the
legal battle and spare the accused from further consequences.
In India, offences which are allowed to be compounded
(Compromised) are described under different statutes differently.
Section 320 of the Code of Criminal Procedure,
1973 describes the compoundability of offences under IPC. Different offences
under IPC are categorised for this purpose as offences which are simple and not grave in
nature and which can be compounded by the affected party only and those
which are considered to be a bit more grave and thus needing the supervision of
the court while being compounded by the affected party.
The list of offences that can be compounded under IPC are
described here.
Similar provisions are also available in other Statutes such
as the Companies Act (Section 430) which specify the specific procedures for compounding of
offences falling under the respective laws.
In the light of this background, let us see what ITA-2000 says
on Compounding of offences.
According to Section 63 of ITA-2000,
Compounding of Contravention
(1) Any contravention under this Act [substituted
for "Chapter" vide amendment dated 19/09/2002] may, either before or after the
institution of adjudication proceedings, be compounded by the Controller or such
other officer as may be specially authorised by him in this behalf or by the
adjudicating officer, as the case may be, subject to such conditions as the
Controller or such other officer or the adjudicating officer may specify:
Provided that such sum shall not, in any case,
exceed the maximum amount of the penalty which may be imposed under this Act
for the contravention so compounded.
(2) Nothing in sub-section (1) shall apply to a person who
commits the same or similar contravention within a period of three years from
the date on which the first contravention, committed by him, was compounded.
Explanation - For the purposes of this sub-section,
any second or subsequent contravention committed after the expiry of a period
of three years from the date on which the contravention was previously
compounded shall be deemed to be a first contravention.
(3)Where any contravention has been compounded under
sub-section (1), no proceeding or further proceeding, as the case may be,
shall be taken against the person guilty of such contravention in respect of
the contravention so compounded.
The key points that we need to note in this section is
a) The first draft of the Act contained the words "
Contravention under this Chapter" which was changed to "Contravention under
this Act"
b) The section states that "either before or after the
institution of the adjudication proceedings"
c) The authority for Compounding is mentioned primarily as
the Controller.
d) The section also indicates that the Controller or the
Adjudicator himself may appoint any other officer on his behalf.
Based on the above, we may draw the following reasoned
conclusions.
a) This section is presently found in Chapter X of the Act
and the contraventions are mentioned in Chapter IX of the Act. The "offences"
on the other hand are mentioned much later in the Act in Chapter XI.
When the earlier draft was released, naavi.org had pointed
out this mistake of the use of the word "Chapter" and subsequently it has been
rectified. It appears that initially this section was intended to be part of
Chapter IX where the civil type of contraventions, the liabilities and the
adjudication procedures are mentioned. Later this has been shifted to Chapter
X after the discussion of the CRAT.
However, the section does not mention whether compounding
can be made by CRAT either before or after an appeal is being considered.
Since CRAT is conceived as judicially more powerful than
the adjudicator or the Controller, it does not make sense that no mention is
made about compounding of the offence with the concurrence of CRAT in any
case.
Whatever may be the reason for this omission, we may now
interpret the current provisions as if the Compounding is permitted only in
two intervening periods one before an adjudication process starts and the
other after the adjudication process starts but before the commencement of the
CRAT proceedings (or other appeal process).
b) Since at present "Adjudication" is available only for
Chapter IX contaventions, Compounding is not available for Chapter XI
offences.
c) This interpretation goes with the selection of the
Controller as the authority for Compounding since it would not be conceivable
for the Controller to decide on the Compoundability in case of an offence such
as falling under Section 67 which in most cases is clubbed with some sections
of IPC as well.
Since Section 320 of CrPc is very clear on what sections of
IPC come under the compounding provisions, it is clear that this cannot be used
to compound the offences under ITA 2000.
The other question that frequently comes across is that if a
person is charged with sections from both IPC and ITA-2000 where the offence
under the IPC is compoundable then, whether Section 63 can be used to Compound
the offence both under IPC and ITA-2000.
In our considered opinion, it appears that if one Act can be
used to compound offences under another Act it would lead to overlapping of the
provisions and is neither advisable or judicially acceptable.
Hence we may draw a conclusion that none of the offences
under Chapter XI of the ITA-2000 are compoundable as per the existing
provisions.
If the provisions are tried to be mis-interpreted and we
argue that "How is it possible that none of the offences can be Compoundable"?
then we shall be opening a possibility of a challenge of the powers of the
Controller, his Capability to take a view in complicated judicial
interpretations etc. The possibility of any such decisions being struck down
later by higher courts is very high.
In the event of a Compounding done by the Controller being
struck down, or even when the Controller himself refuses to accept his
jurisdiction over compounding of Criminal offences, the parties will be left
with an inter-se agreement establishing an intention to compromise and compound.
This could be held against each of them by the other party if the proceedings
revert to pre-compounding status.
I Invite comments on the above from Criminal Law Experts.
Naavi
February 1, 2005
Related Articles:
Compounding under IPC
Compounding under Companies Act
