The common thread deducible from various judgments of the Supreme Court covering similar issues, where an act is an offence under a special statute having an overriding effect over the offence covered by the general law like Indian Penal Code, is that in order to exclude the general law or the offence therein, ingredients of the offence defined under the special statute and the Indian Penal Code will have to be the same. If even one ingredient of an offence under the Indian Penal Code is missing in the act which has been made punishable under the special statute, the Indian Penal Code section will not be excluded and still can be resorted to albeit, the provisions of section 71 of the Indian Penal Code and section 26 of the General Clauses Act will have to be borne in mind by the Courts while imposing the sentences.{Para 37}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2562 OF 2019
(AWADHESH KUMAR PARASNATH PATHAK V. THE STATE OF MAHARASHTRA AND ANOTHER)
CORAM : MANGESH S. PATIL, R.G. AVACHAT & SHAILESH P. BRAHME, JJJ.
PRONOUNCED ON : 15 APRIL 2024
We have heard both the sides extensively.
2 Cri. Appln. 2562-2019-FB-Ref
2. In view of conflict between a division bench which decided
Gagan Harsh Sharma Vs. State of Maharashtra and others; (2019)
Cri.L.J. 1398 and a division bench dealing with Awadhesh Kumar
Parasnath Pathak Vs. The State of Maharashtra and another and
connected matters (Criminal Application 2562 of 2019, Aurangabad
Bench - order dated 26-02-2020), the latter being unable to concur with
the former, following questions have been referred to us for answers :
1) Whether Section 43 read with Section 66 of I.T. Act covers
the cases:-
a) Involving the obtaining of permission, by cheating the
owner or any other person, who is incharge of computer,
computer system or computer network, and thereby induced
the owner or person in charge of the computer, computer
system or comuter network for doing the act enumerated in
Section 43 of the I.T. Act ?
b) The expression fraudulently or dishonestly covers the
cases in which permission is obtained from the owner or
person who is incharge of computer or computer system or
computer network by cheating him ?
c) Whether Section 72 of the I.T. Act covers all the
ingredients of Sections 406, 408, 409 of the Indian Penal
Code especially cases in which access is secured
dishonestly to any electronic correspondence, information,
document or other material and the said electronic record
correspondence, information, document or material in
misappropriated or converted for one’s own use?
d) Whether the acts done under Sections 43 or 72 of the
I.T. Act cover the criminal acts done with common intention ?
3. By relying upon the decision of the Supreme Court in the
matter of Sharat Babu Digumarti V. Government of NCT of Delhi;
AIR 2017 SC 150, the division bench in Gagan Harsh Sharma held
that even a dishonest and fraudulent act falls within the scope of
3 Cri. Appln. 2562-2019-FB-Ref
section 66 of the Information Technology Act, 2000 (IT Act). Sections
79 and 81 give overriding effect and the offences pertaining to
electronic record, covered by the IT Act being punishable under section
43 read with section 66 would take out the provisions of the Indian
Penal Code. In Awadhesh Kumar Parasnath Pathak (supra), the
division bench expressed, for the reasons mentioned in the order, that
it was not agreeable with the observations in Gagan Harsh Sharma.
4. Incidentally, it is a matter of record that the decision in the
matter of Gagan Harsh Sharma was challenged before the Supreme
Court but the Special Leave Petition was dismissed. In the context of a
similar interplay between the provisions of Legal Metrology Act, 2009
and the relevant offences under the Indian Penal Code, was dealt with
by the Supreme Court in State of Uttar Pradesh V. Aman Mittal and
another; (2019) 19 SCC 740. Similar issues were raised and even
Gagan Harsh Sharma was cited before the Supreme Court together
with the decision in the matter of Sharat Babu Digumarti. However,
considering the fact situation in the matter of Gagan Harsh Sharma
and observing that dismissal of the Special Leave Petition against the
order would not amount to merger of the order passed by the High
Court in the Supreme Court order, the issue was left open to be
decided in an appropriate case with following observations in
paragraph no. 25 :
4 Cri. Appln. 2562-2019-FB-Ref
“25. The Bombay High Court in Gagan Harsh Sharma v. State
of Maharashtra, 2018 SCC OnLine Bom. 17705 has found that
even a dishonest and fraudulent act falls within the scope of
Section 66 of the IT Act. We are not called upon in the present
appeals to examine whether an accused can be tried for an
offence under IPC in view of Section 66 of the IT Act. Such
question can be raised and decided in an appropriate case.”
5. However, the decision in Sharat Babu Digumarti was
commented in following words :-
“28. Sharat Babu Digumarti v. State (NCT of Delhi), (2017) 2
SCC 18 is a judgment dealing with obscenity in the electronic
form. This Court has held that the IT Act is a special enactment.
Since the offence has nexus or connection with the electronic
record the protection and effect of Section 79 cannot be ignored
and negated. Section 292 IPC makes sale of obscene books as
an offence which cannot be made out in view of special
provision made in the IT Act. The said judgment is, that an
offence pertaining to electronic record falls within Section 67 of
the IT Act, whereas, Section 292 IPC deals with an offence of
obscenity in the printed format, therefore, two offences operate
in different fields.”
6. With this preface, we turn to the questions referred to us.
There are plethora of judgments wherein the Supreme Court and the
High Courts have been called upon to face similar fact situations
concerning interplay between the provisions defining the acts which
amount to the offences contained in the special statute vis a vis the
offences defined under the general law i.e. the Indian Penal Code,
where these offences under different statutes are similar.
7. In the matter of Sharat Babu Digumarti, the allegations
were in respect of transmission of obscene material in electronic form
wherein section 292 of the Indian Penal Code was invoked and by
referring to the provision fo section 79 and 81 of the IT Act, it was held
that since IT Act is a latter enactment and section 67 of the IT Act
makes publication and transmission of the obscene material in
electronic form punishable, the accused would come out of the net of
section 292 of the Indian Penal Code. The issue before the Supreme
Court was as to whether the appellant who was discharged of section
67 of the IT Act could be proceeded under section 292 of the Indian
Penal Code. In the context of such an issue, following were the
observations :-
“32. Section 81 of the IT Act also specifically provides that the
provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time
being in force. All provisions will have their play and
significance, if the alleged offence pertains to offence of
electronic record. It has to be borne in mind that IT Act is a
special enactment. It has special provisions. Section 292 IPC
makes offence sale of obscene books, etc. but once the offence
has a nexus or connection with the electronic record the
protection and effect of Section 79 cannot be ignored and
negated. We are inclined to think so as it is a special provision
for a specific purpose and the Act has to be given effect to so
as to make the protection effective and true to the legislative
intent. This is the mandate behind Section 81 of the IT Act. The
additional protection granted by the IT Act would apply.”
8. By referring to paragraph no. 10 from the Solidaire India
Ltd. Vs. Fairgrowth Financial Services Ltd.; (2001) 3 SCC 71,
following conclusion was drawn in paragraph no. 37 :
“37. The aforesaid passage clearly shows that if legislative
intendment is discernible that a latter enactment shall prevail,
the same is to be interpreted in accord with the said intention.
We have already referred to the scheme of the IT Act and how
obscenity pertaining to electronic record falls under the
scheme of the Act. We have also referred to Sections 79 and
81 of the IT Act. Once the special provisions having the
6 Cri. Appln. 2562-2019-FB-Ref
overriding effect do cover a criminal act and the offender,
he gets out of the net of IPC and in this case, Section 292. It is
apt to note here that electronic forms of transmission are
covered by the IT Act, which is a special law. It is settled
position in law that a special law shall prevail over the general
and prior laws. When the Act in various provisions deals with
obscenity in electronic form, it covers the offence under
Section 292 IPC.” (emphasis supplied)
9. It is thus apparent that Sharat Babu Digumarti was a
matter where the issue under consideration was whether offence under
section 67 of the IT Act and the one under section 292 of the Indian
Penal Code are the same. It is in this context, the decision in Sharat
Babu Digumarti will have to be understood.
10. It would be necessary to understand as to how the division
bench in Gagan Harsh Sharma has referred to & relied upon Sharat
Babu Digumarti. Following paragraphs are relevant :
“27. Applying the aforesaid principles to the facts involved in the
case, perusal of the complaint would reveal that the allegations
relate to the use of the data code by the employees of the
complainant company by accessing the Code and stealing the
said data by using the computer source code. The Act of
accessing or securing access to computer/computer system or
computer network or computer resources by any person without
permission of the owner or any person who is in charge of the
computer, computer system, computer network or downloading
of any such data or information from computer in a similar
manner falls within the purview of Section 43 of the Information
Technology Act, 2000. When such Act is done dishonestly and
fraudulently it would attract the punishment under Section 66 of
the Information Technology Act, such Act being held to be an
offence. The ingredients of dishonesty and fraudulently are the
same which are present if the person is charged with Section
420 of the Penal Code, 1860. The offence of Section 379 in
terms of technology is also covered under Section 43. Further,
as far as Section 408 is concerned which relates to criminal
breach of trust, by a clerk or servant who is entrusted in such
capacity with the property or with any dominion over property,
would also fall within the purview of Section 43 would intents to
7 Cri. Appln. 2562-2019-FB-Ref
cover any act of accessing a computer by a person without
permission of the owner or a person in charge of computer
and/or stealing of any data, computer data base or any
information from such computer or a computer system including
information or data held or stored in any removable storage
medium and if it is done with fraudulent and dishonest intention
then it amounts to an offence. The ingredients of an offences
under which are attracted by invoking and applying the Section
420, 408, 379 of the Indian Penal Code are covered by Section
66 of the Information Technology Act, 2000 and prosecuting the
petitioners under the both Indian Penal Code, 1860
and Information Technology Act would be a brazen
violation of protection against double jeopardy.
28. In such circumstances if the special enactment in form of
the Information Technology Act contains a special mechanism
to deal with the offences falling within the purview of
Information Technology Act, then the invocation and application
of the provisions of the Penal Code, 1860 being applicable to
the same set of facts is totally uncalled for. Though the learned
APP as well as Shri. Gupte has vehemently argued that the
prosecution under the provisions of the Penal Code, 1860 can
be continued and at the time of taking cognizance the
Competent Court can determine the provisions of which
enactments are attracted and it is too premature to exclude the
investigation in the offences constituted under the Penal Code,
1860, we are not ready to accept the said contention of the
learned Senior Counsel, specifically in the light of the
observations of the Hon'ble Apex Court in the case of Sharat
Babu Digumarti (Supra). We are of the specific opinion that it
is not permissible to merely undergo the rigmarole of
investigation although it is not open for the Investigating Officer
to invoke and apply the provisions of the Penal Code, 1860, in
light of the specific provisions contained in the Information
Technology Act, 2000 and leave it to the discretion of the Police
Authorities to decide in which direction the investigation is to be
proceeded. The Information Technology Act, 2000 being a
special enactment, it requires an able investigation keeping in
mind the purpose of the enactment and to nab the new
venturing of crimes with the assistance of the Technology.”
11. In the matter of Awadeshkumar Parasnath Pathak, a coordinate
division bench was unable to agree with Gagan Harsha
Sharma and has pointed out as to how the offences as defined under
section 43 read with section 66 and section 72 are not the same
8 Cri. Appln. 2562-2019-FB-Ref
offences as defined and made punishable under section 406, 408, 420
of the Indian Penal Code.
12. It, therefore, becomes imperative that ingredients of all
these relevant offences are examined carefully in juxtaposition.
COMPARISON OF INGREDIENTS OF VARIOUS SECTIONS
No. S.43(b) IT Act S.66 IT Act S.72 IT Act S.405/406 IPC S.408 IPC S.409 IPC S.420 IPC
1 Unauthorized
downloading
or copying or
extraction
from a
computer
Unauthorized
downloading
or copying or
extraction
from a
computer
Disclosure
without
consent of the
person
concerned, to
any other
person
Entrustment of
property or of
dominion over
property
Entrustment of
property or of
dominion over
property
Entrustment of
property or of
dominion over
property
Dishonest or
fraudulent
deception of a
person
2 Of any data or
computer
database or
information
Of any data or
computer
database or
information
Of electronic
record, book,
register,
corresponden
ce,
information,
document or
other material
Dishonest
misappropriation
or conversion to
his own use of the
said property OR
Dishonest use of
willful suffering of
any other person
to do so in
violation of (a) any
directions of law
prescribing the
mode in which
such property is to
be discharged, or
(b) any Legal
contract made
touching
discharge of such
trust
Dishonest
misappropriation
or conversion to
his own use of the
said property OR
Dishonest use of
willful suffering of
any other person
to do so in
violation of
(a) any directions
of law prescribing
the mode in which
such property is to
be discharged, or
(b) any Legal
contract made
touching discharge
of such trust
Dishonest
misappropriation
or conversion to
his own use of the
said property OR
Dishonest use of
willful suffering of
any other person
to do so in
violation of (a) any
directions of law
prescribing the
mode in which
such property is to
be discharged, or
(b) any Legal
contract made
touching
discharge of such
trust
Inducement of
person so
deceived to
(a) deliver any
property to any
person, or
(b) to make,
alter or destroy
any valuable
security or
anything which
is sealed or
capable of being
converted into a
valuable security
3 With
dishonest or
fraudulent
intention
(Mens Rea)
Accused
secures
access in
pursuance of
powers
conferred
under this act
The accused was
a clerk or a
servant
The accused was
a public servant or
a banker,
merchant, broker,
attorney or agent
4 The accused was
entrusted with that
property in such
capacity
Question no. 1(a) & 1(b) :-
Submissions :
13. Learned advocates for the applicants would argue that the
provisions of IPC cannot be invoked when provisions of the IT Act are
9 Cri. Appln. 2562-2019-FB-Ref
applicable. They would rely upon Supreme Court’s decision in Sharat
Babu Digumarti (supra) to submit that when the special provisions,
which have a superior effect, encompass a criminal act and the
offender, the latter is exempted from the Indian Penal Code. The legal
principle is clear; a special law will take precedence over the general
and earlier laws. Further, relying on the decision of this Court in Gagan
Harsh Sharma (supra) they would submit that the unauthorized access
or securing access to computer/computer system or computer network
or computer resources by any person without permission of the owner
or any person who is in charge of the computer, computer system,
computer network or downloading of any such data or information from
computer is covered by section 43 of the IT Act. If such acts are
conducted with dishonest and fraudulent intentions, they become
punishable by invoking section 66 of the IT Act. Additionally, the
technological equivalent of the offence under section 379 is also
covered by section 43 of IT Act. Moreover, section 408, which deals
with criminal breach of trust by an entrusted clerk or servant, falls
under the ambit of section 43 of IT Act. Any act of accessing a
computer by a person without permission of the owner or a person in
charge of computer and/or stealing of any data, computer data base or
any information from such computer or a computer system including
information or data held or stored in any removable storage medium, if
done with fraudulent and dishonest intent, constitutes an offence
10 Cri. Appln. 2562-2019-FB-Ref
invoking greater punishment in view of section 66 of IT Act. The
ingredients of offences under sections 420, 408, and 379 of the Indian
Penal Code are subsumed under section 66 of the IT Act. Therefore,
prosecuting individuals under both, the Indian Penal Code and the IT
Act for the same offence would contravene the legal protection against
double jeopardy. In situations where the Information Technology Act
provides a specific framework for addressing offences applicable of
provisions of the Indian Penal Code to the same facts is unsustainable.
The IT Act’s specialized mechanisms are designed to supersede the
general statutes in such cases.
14. They would submit that reliance placed by the respondents
in the case of Sayyad Hassan Sayyed Subhan (supra) is not relevant
to the current matter due to the explicit ruling in Sharat Babu
Digumarti (supra).
15. They would further submit that in Aman Mittal (supra), it is
held that Gagan Harsh Sharma (supra), recognized that dishonest
and fraudulent acts are covered by Section 66 of the IT Act. Therefore,
it would not be apt to rely on the decision in the matter of Aman Mittal
(supra). Moreover, the issue involved in Aman Mittal (supra) was
regarding weights and measures to which a specific Chapter in IPC is
provided and Legal Metrology Act, 2009 explicitly makes it clear that
the provisions of IPC which relate to offences with regard to weight and
11 Cri. Appln. 2562-2019-FB-Ref
measure from Chapter XIII of IPC will not apply. Similar provision is
absent in IT Act therefore again it would not be relevant to rely Aman
Mittal (supra). Therefore, they submitted that the questions (a) & (b) be
answered in affirmative.
16. The learned advocates for the respondents and the
learned PP specifically submit that Section 43 of the Information
Technology Act, 2000 does not address the scenarios involving
inducement to defraud, which would lead a person to act or refrain from
acting in a way they otherwise would not, as described in Section 415
of the IPC nor does it cover the induced delivery of property, as in
Section 420 of the IPC. Section 43 pertains to unauthorized computer
usage for certain listed actions. If a complainant is deceived into
copying data or handing over property (which should also encompass
data), due to the fraudulent actions of the accused, he would be liable
under Sections 415, 417, and 420 of the IPC, along with Section 43 of
the IT Act. Additionally, Section 43 could apply if the accused is alleged
to have committed the specified acts via another person, who might be
completely unaware with or without invoking abetment provisions.
Therefore,it was submitted that question no. 1(a) be answered in the
negative.
17. The learned advocates for the respondents and the
learned PP would submit that the terms ‘dishonestly’ and ‘fraudulently’
12 Cri. Appln. 2562-2019-FB-Ref
in Section 66 of the IT Act are not meant to encompass all scenarios.
Section 43 imposes liability for a defined set of actions performed
personally, which subject the individual to penalties but not criminal
prosecution. However, when these actions are carried out with a guilty
state of mind or mens rea, as specified by ‘fraudulently’ or ‘dishonestly’
in Section 66 of the IT Act, they constitute an offence. Essentially,
Section 43 addresses the act itself, while Section 66 concerns the
mental state behind the act, establishing it as an offence. If the actions
of the accused equate to ‘cheating’, as defined in Sections 415 and
420 of the IPC, then those offences are separately applicable. Section
43 does not account for inducement to defraud or causing someone to
act or refrain from acting due to deception, which is covered under
Section 415 of the IPC. section 420 of the IPC would also cover
induced delivery of property. Section 43 solely pertains to unauthorized
computer use for specific actions. If permission has been deceitfully
obtained, then the offence falls under section 415 of the IPC, and if it
results in the induced delivery of property, section 420 of the IPC can
be invoked as well. Therefore, they prayed that question no. 1(b) be
answered in negative.
Analysis :
18. As can be understood, section 43 makes various acts
punishable wherein a person without permission of the owner or any
13 Cri. Appln. 2562-2019-FB-Ref
other person incharge of the computer, computer system or computer
network either accesses, downloads or introduces virus or damages
the computer, computer system network data or creates disruption or
refuses access, destroys or deletes the information or steals, conceals
or alters the computer source code.
19. By virtue of section 66, additionally, any act as is defined
under section 43 is done dishonestly and fraudulently attracts a greater
punishment. However, neither section 43 nor section 66 take within its
sweep a situation where the acts done thereunder as done by resorting
to inducement, which is an additional ingredient for the offences under
section 415 and 420 of the Indian Penal Code, if a person accesses or
secures access to computer, computer system or downloads
something, by inducing the owner or any other person who is incharge.
The offence under section 43 read with section 66 only contemplates a
situation where someone dishonestly or fraudulently does any act
under section 43. However, if it is done with permission accorded,
labouring under some inducement, in our considered view, such an act
would be an offence under section 415 and 420 of the Indian Penal
Code and section 43 read with section 66 of the IT Act fall short to
cover such offences. It is in this context, the definition of cheating
under section 415 will have to be understood, simultaneously, with the
definitions of ‘dishonestly’ contained in section 24 and ‘fraudulently’
contained in section 25 of the Indian Penal Code.
14 Cri. Appln. 2562-2019-FB-Ref
20. Sections 24, 25 and 415 of the Indian Penal Code read
thus:-
“24. “Dishonestly”.—Whoever does anything with the intention
of causing wrongful gain to one person or wrongful loss to
another person, is said to do that thing “dishonestly”.
25. “Fraudulently”.—A person is said to do a thing fraudulently if
he does that thing with intent to defraud but not otherwise.
415. Cheating.—Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived to
deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the
person so deceived to do or omit to do anything which he would
not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that
person in body, mind, reputation or property, is said to “cheat”.
Explanation.— A dishonest concealment of facts is a deception
within the meaning of this section.”
21. The use of word ‘deceiving’ in section 415 is in addition to
the words ‘fraudulently’ or ‘dishonestly’ used therein. A plain reading
would clearly indicate that in order to constitute ‘cheating’ as defined
under section 415, element of deceit is an additional requirement, over
and above the intention of the person resorting to such deceit being
fraudulent and dishonest. It is, therefore, apparent that though section
66 of the IT Act covers the ingredients of ‘fraudulently’ and
‘dishonestly’, it does not cover the element of ‘deceit’ which is an
additional concomitant for constituting the act as ‘cheating’ as defined
under section 415 of the Indian Penal Code.
15 Cri. Appln. 2562-2019-FB-Ref
22. It would be necessary to emphasize that though some
ingredients of offence punishable under section 43 read with section 66
of the Indian Penal Code are overlapping with the offence of cheating
defined under section 415 and the one punishable under section 420,
those are not exactly the same offences.
23. As we have indicated herein-above, the observations
which we emphasized from paragraph no. 37 of Sharat Babu
Digumarti (supra) comprehend the situation where the offence under
the special act having a overriding effect and the one under the general
law are the same.
24. It is in this context that a reference to section 26 of the
General Clauses Act, as has been done in several matters including
Aman Mittal (supra) would be relevant, which reads as under:-
“26. Provision as to offences punishable under two or more
enactments.—Where an act or omission constitutes an offence
under two or more enactments, then the offender shall be liable
to be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for the
same offence.”
25. In the matter of Aman Mittal, reference to the decision in
the matter of Syyed Hassan was made, which was a matter in respect
of section 55 of the Food and Safety Standards Act, 2006 in
juxtaposition to section 188 of the Indian Penal Code, Sangeetaben
Mahendrabhai Patel which was a similar issue regarding section 138
16 Cri. Appln. 2562-2019-FB-Ref
of the Negotiable Instruments Act and section 406, 420 read with
section 114 of the Indian Penal Code; and the doctrine of harmonious
construction resorted to by referring to the decision in the matter of
Macquarie Bank Limited vs Shilpi Cable Technologies Ltd.; (2018)
2 SCC 674. Referring to these decisions, while considering the
offences punishable under the Legal Metrology Act, 2009, in
comparison to the offences under section 415, 467, 468, 477 of the
Indian Penal Code as also the element of common intention under
section 34 or conspiracy under section 120-B of the Indian Penal Code,
following conclusions in paragraph no. 35 of Aman Mittal were made
and would be the guiding factors even for deciding the questions
referred to us:-
“35. The scheme of the Act is for the offences for use of
weights and measures which are non-standard and for
tampering with or altering any standards, secondary standards
or working standards of any weight or measure. The Act does
not foresee any offence relating to cheating as defined in
Section 415 IPC or the offences under Sections 467, 468 and
471 IPC. Similarly, an act performed in furtherance of a
common intention disclosing an offence under Section 34 is not
covered by the provisions of the Act. An offence disclosing a
criminal conspiracy to commit an offence which is punishable
under Section 120-B IPC is also not an offence under the Act.
Since such offences are not punishable under the provisions of
the Act, therefore, the prosecution for such offences could be
maintained since the trial of such offences is not inconsistent
with any of the provisions of the Act. Similar is the provision in
respect of the offences under Sections 467, 468 and 471 IPC
as such offences are not covered by the provisions of the Act.”
17 Cri. Appln. 2562-2019-FB-Ref
26. With respect, adopting the same line of reasoning, we
have no manner of doubt in answering the issue no. 1(a) and 1(b) in
the negative.
Question no. 1(c):-
Submissions :
27. They would submit that taking into account the ingredients
for constituting an offence under section 72, those are covered by
sections 406, 408 and 409 which are different facets of breach of trust
and, therefore, an individual cannot be punished twice for the similar
offences but under the different statutes. They, therefore, submitted
that question no. 1(c) be answered in the affirmative.
28. As against this, learned advocate for the respondents and
the learned PP would submit that section 72 of the IT Act is specifically
applicable to individuals who have been granted authority under the IT
Act or its rules or regulations pertaining to their acts or omissions.
Section 72 does not contemplate a situation and cover the cases
where such breach of trust contemplated under section 72 is
additionally for one’s own use when he secures access to the
electronic record, book, register, correspondence, documents etc. not
only without the consent of the person but for his own use and
constitutes misappropriation as defined under section 403 of the Indian
18 Cri. Appln. 2562-2019-FB-Ref
Penal Code. They submitted that question no. 1(c) be answered in the
negative.
Analysis :
29. A similar exercise, as we have done while answering
questions no. 1(a) and 1(b) will have to be undertaken for answering
even this question. Section 72 of the IT Act and section 403, 406, 408
and 409 of the Indian Penal Code would be relevant which reads as
under :
S.72 IT Act S.403 IPC S.406 IPC S.408 IPC S.409 IPC
72. Penalty for breach of
confidentiality and privacy.—
Save as otherwise provided in
this Act or any other law for the
time being in force, any person
who, in pursuance of any of the
powers conferred under this Act,
rules or regulations made
thereunder, has secured access
to any electronic record, book,
register, correspondence,
information, document or other
material without the consent of
the person concerned discloses
such electronic record, book,
register, correspondence,
information, document or other
material to any other person
shall be liable to penalty which
may extend to five lakh rupees.
403. Dishonest
misappropriation of
property. - Whoever
dishonestly Of criminal
misappropriation of
propertymisappropriates
or converts to his own
use any movable
property, shall be
punished with
imprisonment of either
description for a term
which may extend to two
years, or with fine, or
with both.
406. Punishment
for criminal
breach of trust.—
Whoever commits
criminal breach of
trust shall be
punished with
imprisonment of
either description
for a term which
may extend to three
years, or with fine,
or with both.
408. Criminal breach
of trust by clerk or
servant.—Whoever,
being a clerk or servant
or employed as a clerk
or servant, and being in
any manner entrusted
in such capacity with
property, or with any
dominion over property,
commits criminal
breach of trust in
respect of that property,
shall be punished with
imprisonment of either
description for a term
which may extend to
seven years, and shall
also be liable to fine.
409. Criminal breach of
trust by public servant,
or by banker, merchant
or agent.—Whoever,
being in any manner
entrusted with property,
or with any dominion
over property in his
capacity of a public
servant or in the way of
his business as a
banker, merchant,
factor, broker, attorney
or agent, commits
criminal breach of trust
in respect of that
property, shall be
punished with
imprisonment for life, or
with imprisonment of
either description for a
term which may extend
to ten years, and shall
also be liable to fine.
30. As can be understood, section 72 only makes punishable
the act which is in breach of confidentiality and privacy and again is
done without the consent of the person concerned. Section 406, 408,
409 of the Indian Penal Code are the cases of criminal breach of trust,
criminal breach of trust by a clerk or servant or by public servant,
19 Cri. Appln. 2562-2019-FB-Ref
banker, merchant etc. Section 405 defines criminal breach of trust to
mean whoever being in any manner entrusted with the property
dishonestly misappropriates or converts to his own use that property or
disposes of it in violation of the direction or contract touching the
discharge of the trust. In turn, one will have to refer to definition of
‘dishonest misappropriation’ defined under section 403 which amounts
to the dishonest misappropriation or conversion to one’s own use of
any movable property.
31. Considering the ingredients of the offence punishable
under section 72 in comparison to the offences under section 406, 408,
409 in the light of section 403 and 405 of the Indian Penal Code,
section 72 does not comprehend a situation where the breach of
confidentiality or privacy, which is per se made punishable having been
done without consent of the owner, a situation where such breach of
confidentiality is resorted to for converting the property to one’s own
use or access to the computer or computer system is done dishonestly.
Section 72 only contemplates a situation where someone secures
access to the electronic record / information. But if this act is done
dishonestly for one’s own use, it would be an act which would be
punishable only under section 406, 408 and 409 of the Indian Penal
Code and section 72 would fall short to cover this kind of offence.
Hence, we answer this question also in the negative.
20 Cri. Appln. 2562-2019-FB-Ref
Question 1(d):-
Submissions :
32. Learned advocate for the applicants would submit that
section 43 covers the case of cheating and even expression
‘dishonestly and fraudulently’ are covered wherein the permission is
obtained from the owner by cheating and even Section 72 of IT Act
covers all the ingredients of 406, 408, 409 of IPC.
33. Learned advocates for the applicants also submitted that
section 72 uses the word ‘any person’. Though the IT Act does not
define it, rule 2(i) of the Information Technology (Certifying Authorities)
Rules, 2000 defines it to mean that it shall include an individual, or
company or association or body of individuals, whether incorporated or
not or Central Government or a State Government or any of Ministries
or Departments, Agencies or Authorities of such Government.
34. They would also refer to section 11 of the Indian Penal
Code containing a similar definition, to submit that even in the absence
of a provision similar to section 34 of IPC where a person punishable
under section 43 and 72 would impliedly cover the situation where the
offences are committed by two or more persons by sharing a common
intention. They, therefore, submitted that question no. 1(d) be
answered in the affirmative.
35. Learned advocate for the respondents and the learned PP
would submit that the acts done under Section 43 or 72 of the I.T. Act,
would not cover the criminal acts done with common intention. Such
common intention implies a collective liability, meaning one individual is
held accountable for another’s actions. These sections do not address
this concept. It is only when multiple individuals act in furtherance of
their common intention and there is commonality of intent and
complementarity in action, that Section 34 of the IPC becomes
applicable. This section ensures that all involved parties are held
equally responsible, regardless of their individual roles or whether they
personally executed the act. Therefore, it was submitted that question
no. 1(d) be answered in the negative.
Analysis :
36. Ex facie, neither section 43 nor section 72 makes
punishable an offence as defined therein when it is committed by two
or more persons by sharing a common intention, neither is there any
other provision in the IT Act which would demonstrate the legislature
having comprehended a situation where these offences are committed
by sharing a common intention as defined under section 34 of the
Indian Penal Code. Independently, even this aspect, in the context of
Legal Metrology Act, 2009 was considered in Aman Mittal, in
concluding paragraph (supra). With respect, we follow the same line
of reasoning. Hence, we answer this question also in the negative.
37. The common thread deducible from various judgments of the Supreme Court covering similar issues, where an act is an offence under a special statute having an overriding effect over the offence covered by the general law like Indian Penal Code, is that in order to exclude the general law or the offence therein, ingredients of the offence defined under the special statute and the Indian Penal Code will have to be the same. If even one ingredient of an offence under the Indian Penal Code is missing in the act which has been made punishable under the special statute, the Indian Penal Code section will not be excluded and still can be resorted to albeit, the provisions of section 71 of the Indian Penal Code and section 26 of the General Clauses Act will have to be borne in mind by the Courts while imposing the sentences.
38. We are alive to the fact that these observations of ours’
may not be necessary for answering the questions referred to us,
however, we are making these observations as an abundant precaution
to enable the trial Courts faced with such a situation when they are
called upon, to consider these aspects.
39. Hence, we answer all the questions referred to us in the
negative.
40. Matters be now placed before the appropriate bench for
adjudication.
[ SHAILESH P. BRAHME ] [ R. G. AVACHAT ] [ MANGESH S. PATIL ]
JUDGE JUDGE JUDGE
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