[Report in Hindustan Times, Mumbai Edition, 6th Nov 2018]
An interesting judgement has been reported from Mumbai High Court yesterday (5th November 2018) in the case of State of Maharashtra vs Gagan Varma and Shagun Varma which has tried to lay down some Cyber Jurisprudential principles related to application of sections from IPC along with sections from ITA 2000.
The principle question that arise in the present Criminal Writ Petition is whether the invocation and application of the provisions of the Indian Penal Code can be sustained in the facts and circumstances of the case when the offences committed by the petitioners are also sought to be brought within the purview of the Information Technology Act, 2000, in light of the judgment of the Hon’ble Apex Court in the case of Sharat Babu Digumarti V/s.Government (NCT of Delhi)
The accused had been booked by Shahunagar police in Kolhapur under Sections 408 (Criminal Breach of Trust), 420 (Cheating) of IPC and Section 43 ,65 and 66 of ITA 2000/8.
The allegation was that the accused had “lured” some employees of a company namely Manorama Infosolutions Private Limited, to steal the company’s data and healthcare software.
The accused had approached the High Court complaining that invocation of IPC provisions denied them the benefit of availing bail and compounding provisions available under ITA 2000/8 and not available under IPC.
The bench of the High Court consisting of Justice Ranjit More and Bharati Dangre applied the principle of “Double jeopardy” and upheld the objections. In doing so, the Court also mentioned
“The IT Act provides a complete mechanism and therefore invocation of the provisions of the IPC (additionally) is highly unwarranted. “Sections 408,420 and 379 of the IPC are covered by sections 66 of the IT Act and prosecuting the petitioners under both IPC and IT Act would be a brazen violation of protection against Double Jeopardy”. It also said that “allegations related to the use of data code and stealing of data by using computer source code. Unauthorised access to a computer and stealing of data falls under Section 43, and when such an act is done fraudulently, it attracts punishment under Section 66”.
Sharad Digumarti Precedence
It is true that in the Sharad Digumarti case (This is the infamous Bazee.com case in which the General Manager Mr Digurmati had to undergo trial) the Supreme Court held that when the accused has already been discharged under Section 67 of ITA 2000, Section 292 of IPC in the same case does not sustain. However this was the judgement after the trial under both sections. This judgement was relied upon for the current judgement of the High Court.
The High Court also relied on Section 81 of ITA 2000/8 which stated that the Act (ITA 2000) will have an over riding effect against laws for the time being in force (17th October 2000) if there is any inconsistency. The Court came to the conclusion that the incident was covered under the special Act for digital crimes namely the ITA 2000/8 and adding sections of IPC would amount to double jeopardy. Hence the sections of IPC were allowed to be quashed.
Though the judgement may not entirely be agreeable, it must be admitted that the judgement is a well presented speaking order and is a good contribution to the development of Cyber Jurisprudence.
Some Questions needing further debate
However, it is likely that there could be further debate on some of the following questions.
- Whether “Inconsistency” mentioned under Section 81 also means “Similar”.
- Is it not that “Double Jeopardy” means “Not punishing the same person for the same offence twice”? Does it also mean that the trial cannot be conducted for examining conduct of offences under multiple statutes?
- Even if we assume that the interpretation that Section 43/66 of ITA 2000/8 applies to cases similar to Section 420 of IPC, why did the Court agree to delete the stronger sections and retain the weaker sections? and not the other way round?
- When an offence is committed, there are multiple steps in the offence. Each step may be a different offence. If that offence falls under different statutes, is it not possible to invoke multiple statutes without the same offence being tried under two different sections? Did the prosecution fail to put different steps under different sections?
P.S: But one thing we need also observe that in this case the Court did not reject the complaint because the complainant was a “Company” and not an “Individual”. This needs to be noted by the Adjudicator of Karnataka who once rejected an application from a Company interpreting the word “Person” under Section 43 as applicable only to an individual and not a “Company”. (Please read this article to understand this issue)
The Mumbai High Court judgement needs to be also appreciated for the reason that the Judges are becoming sensitive to the nuances of the IT Crimes and going deep into the analysis of the anatomy of a Cyber Crime.
Impact on PDPA 2018
There is also a possibility that this judgement may hold a limited precedence in respect of any “Special Law” which has an “Overriding” effect.
For example the proposed Personal Data Protection Act 2018 (PDPA 2018) states under section 110:
“Save as otherwise expressly provided under this Act, the provisions of this Act shall have an overriding effect to the extent that such provisions are inconsistent with any other law for the time being in force or any instrument having effect by virtue of any such law”
The question which will arise is if this PDPA 2018 is passed in 2018, and at that time, ITA 2000 has already been in existence, will PDPA 2018 over ride ITA 2000/8 if there are any overlapping provisions.
In future, this will create some issues since every time a new law is introduced, there will be an argument that it is a special law and it has to be considered as over riding the earlier law.
Speaking specifically of PDPA 2018, all its offences are “Cognizable” even where the offence carries an imprisonment of 3 years like ITA 2000 and the offences relate to “Data Theft” similar to ITA 2000/8.
The prosecution in future should therefore take care of preparing the charge sheet properly by classifying the offence into multiple parts and apply different sections appropriately to avoid double jeopardy and over riding of one Act with another.
Naavi
Unfortunately 43A wil be repealed once PDPA will be enacted.
No doubt, this is a very interesting judgement. The point made by you that there are multiple stages or parts of a crime and every such part or activity or stage may come under a particular section of a particular Act. In such cases, the principle of double jeopardy should be ignored and the trial has to proceed accordingly, because for one aspect of the crime, he may be exonerated from ITA 2000/8 and the trial may proceed under some other sections in another Act. This would be a classic case when the question of criminal conspiracy comes (Sec 120 A/B of IPC) or may be the provisions of Anti Money Laundering Act comes on the question of collusion leading to data theft or unauthorised access etc. Compliments to you on a very good analysis.