Under ITA-2000, Compounding of contraventions under
Chapter IX had been provided under Section 63. (Please see article
Can
ITA-2000 Chapter XI Crimes be Compounded? for more details)
ITAA(p)-2005 (We shall use this abbreviation for the
amended act proposed by the "Expert Committee") now redefines
the conditions for compounding of offences under Section 80 A. This
article examines the details....Naavi
The provisions on compounding under Section 63 of
ITA-2000 were as follows.
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 above provisions clearly mentioned that the
Compounding could be done either "before or After the institution of
Adjudication". Since Adjudication was available only for Chapter IX
contraventions, it could be easily inferred that the Compounding referred
only to such contraventions. It could not be extended to Chapter XI
offences. It was appropriate that the clause was available in Chapter X
after Chapter IX and before Chapter XI. For the same reason it was
consistent to think of Compounding powers being conferred on the
Controller.
In the proposed amendments, section 80 A is proposed to
address the issue of Compounding and states as under. This section has
been placed now under Chapter XIII after chapters IX and XI.
It states as follows.
80A.
Compounding of Certain Offenses
(1) Notwithstanding any thing contained in the Code of Criminal
Procedures, 1973, any offense punishable under this Act may either
before or after the institution of any prosecution be compounded by
(a)
the Controller; or
(b)
the adjudicating officers
appointed under section 46, where the maximum amount of fine and/or
imprisonment does not exceed such limits as may be specified by the
Central Government.
on
payment or credit to the Central Government of such sum as the
Controller or the Adjudicating officer, as the case may be, may
specify.
(2) Nothing in sub-section (1) shall apply to an offence committed by a
person within a period of three years from the date on which a similar
offence committed by him was compounded under this section.
Explanation: For the purpose of this section
any second or
subsequent offence committed after the expiry of a period of three years
from the date on which the offence was previously compounded, shall be
deemed to be a first offence.
(3) Where any offence is compounded before the institution of any
prosecution, no prosecution shall be instituted in relation to such
offence, either by the Controller or by the adjudication officer or by
any other person, against the offender in relation to whom the offence
is so compounded.
(4) Where the composition of any offence is made after the institution
of any prosecution, such composition shall be brought by the Controller
or the adjudicating officer in writing, to the notice to the Court in
which the prosecution is pending and on such notice of the composition
of the offence being given, the person in relation to whom the offence
is so compounded shall be discharged.
This narration states that Compounding can be
instituted either before or after prosecution. Though both the earlier
version and the present version use the term "Act" (For any offence or
contravention) it may be noted that the earlier version referred to
contravention and the present version refers to offence. Also the current
version talks of Criminal Procedure Code and Prosecution. All this with
the placement of the section in Chapter XIII clearly indicates that
Compounding is permitted even for criminal offences.
It may be noted that the proposed section clearly
mentions that even if prosecution is before a Court, once the adjudicator
or the controller decides on compounding of the offence and such notice of
composition is given to the Court the person accused shall be discharged.
It is clear that the Court does not even have the power
to refuse composition since its permission is not required for the
composition even in cases pending before it.
This means that any accused can escape conviction
through the composition process which will be handled by the adjudicator
or the controller. It is pertinent to also note that both the adjudicator
and the controller are bureaucrats directly associated with the Ministry
of Communication and Information Technology. This places the executive
power on a higher pedestal than than judicial power.
It does not require great intelligence to understand
that this provision has been inserted only to bail out an executive in a
case which is already with the Court. Is there a greater evidence required
to say that this proposed amendment exercise is a fraud on the society?
We would have appreciated if the Ministry had granted a
Presidential pardon to privileged individuals from any Cyber Crime
rather than twist the law to suit one individual.
Now that many other offences are available for which
fines can be upto 25 lakhs the "Power to Compound" should be a juicy power
for the executives to discharge sine it does not come under easy judicial
scrutiny. ( It is not clear if the compounding can be challenged in a
court of law).
If this proposition becomes a law, the Cyber Crime
Prevention becomes a huge store house of corruption working around the
provisions of Section 80 A.
Naavi
August 31, 2005
