Bombay High Court (Aurangabad Bench): A 3-Judge Bench of Mangesh S. Patil*, R. G. Avachat and Shailesh P. Brahme, JJ. examined whether an accused can be prosecuted against various sections of the Information Technology Act, 2000 (‘IT Act’) and the Penal Code, 1860 (‘IPC’), directedthat the matters be placed before an appropriate Bench for adjudication of the issues at hand.
Genesis of the Matter
The Court deliberated upon whether actions covered under Sections 43 and 66 of the IT Act constitute fraudulent or dishonest behaviour, emphasizing that these provisions do not encompass situations where permission is obtained through deception from the custodian of a computer system, further observing that while the IT Act addresses dishonest and fraudulent acts, it lacks explicit provisions regarding deceit, a crucial element in establishing offenses under the IPC.
In Gagan Harsh Sharma v. State of Maharashtra 2018 SCC OnLine Bom 17705, it was held that when the acts specified under Section 43 of the IT Act are done dishonestly and fraudulently, the same becomes an offence and by virtue of the overriding effect of the IT Act (Sections 79 and 81), the offences punishable by Section 43 read with 66 of the IT Act would take out provisions of the IPC.
In other words, the IT Act, being a special law, will prevail over IPC and IT Act sufficiently including all dishonest and fraudulent acts, thus eliminating the need for trying an accused for offences of cheating, criminal breach of trust, etc., in addition to the offences under the IT Act. However, the ratio of Gagan Harsh Sharma was doubted by another Division Bench in Awadhesh Kumar Parasnath Pathak v. The State of Maharashtra (Criminal Application No. 2562 of 2019), which led to the reference to the Full Bench.
In view of the conflict between views expressed by two Division Bench judgments of the same Court in Gagan Harsh Sharma (supra) and Awadhesh Kumar Parasnath Pathak (supra), after hearing arguments, the Court formulated certain issues.
Issues and Analysis
1. Whether Section 43 read with Section 66 of the IT Act covers the cases:
a) Involving the obtaining of permission, by cheating the owner or any other person, who is in charge of computer, computer system, or computer network, and thereby induced the owner or person in charge of the computer, computer system, or computer network for doing the act enumerated in Section 43 of the IT Act?
b) The expression fraudulently or dishonestly covers the cases in which permission is obtained from the owner or person who is in charge of the computer or computer system or computer network by cheating him? The Court observed that the IT Act does not cover such cases where permission is obtained by cheating the owner/any person in charge of a computer, etc. Section 66 of the IT Act covers only ‘dishonest’ and ‘fraudulent’ acts (as mentioned in Section 43).
The Full Bench held that to make out an offence of cheating, the element of deceit is an additional requirement i.e., in addition to the act being dishonest or fraudulent. However, Section 66 of the IT Act only covers ingredients of ‘fraudulently’ and ‘dishonesty’ but makes no mention of the element of deceit. Thus, the Court held that the two offences (i.e., Cheating under IPC and Acts under Section 43 r/w Section 66) may overlap but are not exactly the same, and therefore, an accused can be tried under both the offences, and one will not prevail over the other.
c) Whether Section 72 of the IT Act covers all the ingredients of Sections 406, 408, 409 of the 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 is misappropriated or converted for one’s own use?
In answer to the above issue, the Court noted that the IT Act does not cover all the ingredients of Section 406, 408, and 409 of the IPC. The Court further observed that Section 72 only makes punishable the act which is in breach of confidentiality and privacy and is done without the consent of the person concerned. Thus, where access to electronic record/information is secured dishonestly, the same is covered by Section 72 of the IT Act. However, the Court further clarified that Section 72 does not contemplate a situation where the act is done dishonestly by a person for his own. Thus, where breach of confidentiality of a property also results in converting the property so accessed for one’s own use, such act will not be covered by Section 72. Therefore, the Court opined that an accused can be tried under both the Acts, and IT Act will not prevail over the IPC with regard to the offences of Section 406, 408, and 409 of the IPC.
d) Whether the acts done under Sections 43 or 72 of the IT Act cover the criminal acts done with common intention?
The IT Act does not make punishable an offence when it is committed by two or more persons by sharing a common intention. It is not found in Section 43 or 72 or any other provision of the IT Act. Thus, it does not appear that the Legislature contemplated such a situation. Further, the Court noted that in the context of Legal Metrology Act, 2009, a similar aspect was considered in State of UP v. Aman Mittal (2019) 19 SCC 740. Thus, the Court held that the acts done with common intention by two or more persons are not covered under the IT Act and can only be punished under the IPC.
Furthermore, the Court explored the applicability of Sections 72, 403, 406, 408, and 409 of the IPC concerning breach of trust and misappropriation of property. It discerned that while Section 72 of the IT Act addresses breaches of confidentiality and privacy, it does not encompass situations where such breaches result in the conversion of assessed property for personal use.
In addressing concerns regarding collective liability and common intention among offenders, the Court observed that neither Section 43 nor Section 72 of the IT Act makes punishable an offense committed by two or more persons with a shared intention. This distinction reaffirms the complementary nature of the IPC and the IT Act in prosecuting cybercrimes.
The Court held that neither Section 43 nor Section 72 of the IT Act makes an offence punishable when committed by two or more persons with a common intention. The Court also reasoned that the legislature did not include provisions in the IT Act to address offences committed with common intention as defined under Section 34 of the Indian Penal Code.
Additionally, the Court emphasized that for a special statute, such as the IT Act, to override the general law, such as the IPC, the ingredients of the offense under both laws must be the same. If any ingredient of an offence under the IPC is missing in the act made punishable under the special statute, the IPC section will not be excluded and it can still be resorted to. The Court also added that though, the provisions of Section 71 of the Penal Code and Section 26 of the General Clauses Act, 1897 will have to be borne in mind by the Courts while imposing the sentences.
The Court directed that the matters be placed before the appropriate Bench for adjudication.
[Awadhesh Kumar Parasnath Pathak v. State of Maharashtra, 2024 SCC OnLine Bom 1074, Judgment dated 15-04-2024]
Judgment authored by: Justice Mangesh S. Patil
Advocates who appeared in this case :
Advocates for the Applicants: P.P. Uttarwar, R.F. Totala, Rahul Totala, Riya M. Jariwal ,Swapnil Lohiya, Ganesh S. Yada, Vedant S. Kabra, R.A. Karwa, Kiran Jadhav, Ajit Gaikwad Patil
Advocates for the Respondents: A.B. Girase, Bharat Chug, Tapan K. Sant, Abhaykumar D. Ostwal, P.M. Salunke, V.L. Bhange, S.S.Munit, R.N. Patil
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