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2018 DIGILAW 1929 (ALL)

Amit Kumar Jadaun (Amit) v. State of U. P.

2018-09-06

DINESH KUMAR SINGH I, RAMESH SINHA

body2018
JUDGMENT : 1. Heard Sri Uma Kant Mishra, learned counsel for the petitioner, Sri N.K. Verma, learned Standing Counsel appearing for the State and perused the record. 2. This Crl. Misc. Writ Petition has been filed seeking quashing of the impugned FIR dated 29.08.2018 registered as Case Crime No.2280 of 2018 under section 3/7 E.C. Act and 43 of the Information Technology (Amended) Act, 2000, Police Station Indrapuram, District Ghaziabad with further prayer that a direction be issued to the respondents not to arrest the petitioner in pursuance of the said FIR. 3. The brief facts of the case are that the Commissioner, Food and Civil Supply, U.P. wrote a letter on 21.08.2018 to Supply Officer to enquire and submit report about the misuse of Adhar authentication facilities in respect of Adhar Card holders by persons dealing with data-base, technical operators and by concerned fair price shop dealers. The Commissioner, Food and Civil Supply had also provided a shop list on excel sheet by which it was apparent that from one Adhar Card several transactions were made. In compliance with the said letter, a team of Supply Department inspected the shop list and submitted its report on 27.08.2015 alleging therein that the fair price shop owners of Transhindan area whose names had been mentioned in the FIR including the name of the present accused-applicant, had illegally transacted many ration cards from one adhar card number through E-Pos Machine and thereafter they misappropriated/black marketed the food grain (essential commodities) meant for distribution through Public Distribution System. 4. The FIR was lodged by Sri Sanjay Vishwakarma, Supply Inspector on 29.8.2018 against as may as 29 accused including the present accused-petitioner under section 3/7 Essential Commodities Act and section 43 of the Information Technology (Amended) Act, 2000 (here-in-after referred to as Act of 2000) making allegation therein that the petitioner had helped the technical operators who were involved in the process. 5. The submissions made by the learned counsel for the petitioner are that the FIR is totally silent as regard the manner in which the petitioner helped the technical assistant; no offence under section 3//7 of Essential Commodities Act is made out against the petitioner as he is neither a licencee nor permit holder. 5. The submissions made by the learned counsel for the petitioner are that the FIR is totally silent as regard the manner in which the petitioner helped the technical assistant; no offence under section 3//7 of Essential Commodities Act is made out against the petitioner as he is neither a licencee nor permit holder. So far as the offence under 43 of the Act 2000 is concerned which has been reproduced in the petition, no offence is made out under the said provision and it does not provide for any penal provision rather the same provides only for compensation to be awarded following the procedure prescribed under section 46 of the Act. As per section 46 of the Act, an Adjudicating Authority is required to be appointed by the Government, which shall after being given reasonable opportunity of hearing, can impose penalty or pass an order of compensation. Further, it is submitted that under section 57 of the said Act, there is provision of appeal provided against the order passed by Adjudicating Authority under section 46(2) of the Act of 2000. Citing these provisions, it has been argued that section 43 of the Act of 2000 only provides for compensation and hence the same shall not be treated a penal provision. Further, he has submitted that under section 65 of the Act of 2000 punishment has been provided upto three years or fine of Rs.2,00,000/- or both, if one conceals, destroys or alters any computer source code used for computer, computer programme system, network but in the present case, there is no such allegation made against the petitioner. The petitioner is a peace loving person having no criminal antecedents and he does not know how to operate the computer as he is not a technical hand. Therefore, the prayer is made for quashing of the aforesaid FIR. 6. In order to understand the mode of committing offence and as to whether the same is punishable offence or not, it would be pertinent to refer to the relevant provisions of the Information and Technology Act. Section 43 of the said Act provides as follows:- "43. Penalty and compensation for damage to computer, computer system, etc. 6. In order to understand the mode of committing offence and as to whether the same is punishable offence or not, it would be pertinent to refer to the relevant provisions of the Information and Technology Act. Section 43 of the said Act provides as follows:- "43. Penalty and compensation for damage to computer, computer system, etc. If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network, or computer resource — (a) accesses or secures access to such computer, computer system or computer network; (b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium; (c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network; (d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network; (e) disrupts or causes disruption of any computer, computer system or computer network; (f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means; (g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder; (h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network, he shall be liable to pay damages by way of compensation to the person so affected. (i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means; (j) steel, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage; Explanation.--For the purposes of this section: (i) "computer contaminant" means any set of computer instructions that are designed — (a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or (b) by any means to usurp the normal operation of the computer, computer system, or computer network; (ii) "computer data base" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network; (iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource; (iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means. (v) "computer source code" means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.” 7. The aforesaid section provides for certain set of acts; if committed by any person without the permission of the owner or person in-charge of a Computer, Computer System or Computer Network, commits of any of the acts provided under the sub-sections (a) to (j) of section 43 of the Act of 2000, the person is liable to pay damages by way of compensation to the person affected. It provides for remedy in the form of the compensation to the victim. But that is not the only remedy under the Act of 2000 for the victim. It provides for remedy in the form of the compensation to the victim. But that is not the only remedy under the Act of 2000 for the victim. According to section 66 of the Act of 2000; “if any person dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.” 8. The Section 66 has provided another form of remedy for the victim of the acts committed against them under section 43. The major difference between sections 43 and 66 is that; i. The prerequisite of section 66 is the existence of mens-rea which could be reflected by the words used in section 66 of the Act i.e. “dishonestly or fraudulently” in turn this prerequisite is not the condition for section 43 of the Act of 2000. The only prerequisite which applies in the case of section 43 of the Act of 2000 is that whether the act committed by the person under section 43 of the Act of 2000 is without permission of the owner or person who is the In-charge of the Computer, Computer System, Computer Network; ii. Section 43 of the Act of 2000 provides for the remedy of the victim in the form of damages to be paid to the person affected by way of compensation by the person committing any contravention under section 43 (a) to (j) of Act of 2000 whereas, section 66 provides for punishment of the person committing the act , which may extend to three years imprisonment or to fine which may extend to Rs.5,00,000/-. 9. Most important facet about this provision of Act of 2000 is that, no single provision of the Act provides for the alternative application of sections 43 and 66 of the Act. That means, simultaneous actions under sections 43 and 66 of the Act may be initiated by the victim against the person who commits any contravention under section 43 of the Act. 10. Another interesting aspect to the acts provides under section 43 of the Act of 2000 is related to the jurisdiction of the court. The Adjudicating Authority has the jurisdiction to try the contravention of the provisions under Chapter IX of the Act of 2000. 10. Another interesting aspect to the acts provides under section 43 of the Act of 2000 is related to the jurisdiction of the court. The Adjudicating Authority has the jurisdiction to try the contravention of the provisions under Chapter IX of the Act of 2000. Taking into consideration the technical aspect of the acts provided under section 43 of the Act, the jurisdiction of civil courts is expressly barred under the Act. A special court in the form of Adjudicating Authority is provided under the said Act to try the contraventions under Chapter IX related to Penalties, Adjudication and Compensation, whereas, there is no special court created for offences prescribed under Chapter XI consisting of sections 65 to 74 related to offences. Regular criminal courts have jurisdiction depending upon their respective power to adjudicate depending upon the quantum of the punishment which is prescribed in the Code for Criminal Procedure, 1973. 11. Section 43 of the Act of 2000, right at the outset provides for pre-requisite to enforce the liability under this section. The two requirements for invocation of this section are as follows: i. The acts committed under this section must have been committed without the permission of the owner or any person who is in-charge of Computer, Computer System, Computer Network; ii. There must be some kind of damage caused to the person affected by such acts; The reference can also be made to section 47 of the Act of 2000 which provides for factors to be taken into account by the Adjudicating Authority while adjudicating the quantum of compensation under section 43 of the Act. Section 47 of the Act provides for three different factors which are as follows: a. the amount of gain on unfair advantage, wherever quantifiable, made as a result of the default; b. the amount of loss caused to any person as a result of default; c. repetitive nature of the default. 12. Section 43 of the Act requires that the act of default must have been committed without the permission of the person who is owner or a person in-charge of the Computer, Computer System or Computer Network. Secondly the act of the defendant must have caused some damage or loss to the person so affected. 13. 12. Section 43 of the Act requires that the act of default must have been committed without the permission of the person who is owner or a person in-charge of the Computer, Computer System or Computer Network. Secondly the act of the defendant must have caused some damage or loss to the person so affected. 13. Chapter IX of the Act provides for the contravention or acts which are prohibited in section 43 of the Act and the adjudication of the such act and contraventions is provided under the same Chapter under section 46. 14. Section 46 (1) provides for the purpose of adjudicating under Chapter IX, any contravention under this Act, Rules & Regulations thereunder, the Central Government shall appoint an Adjudicating Officer. Section 46 (3) of the Act of 2000 provides that, officer to be appointed as Adjudicating Officer shall not be below the rank of the Director to the Government of India or equivalent Officer of a State Government to hold the enquiry under Chapter IX in case of any contravention of any provision of the Act, Rule, Rules & Regulations under it. Such an enquiry shall be conducted by an Adjudicating Officer in the matter which is provided by the Central Government through Notification in Official Gazette. In Indian National Congress (I) vs. Institute of Social Welfare (2002) 5 SCC 685 ; the Supreme Court has held; “i)---Where law requires that an authority before arriving at a decision, must make an enquiry, such requirement of law makes the authority a quasi-judicial authority;” 15. From the above decision and the provisions under Rule 4 of the Information Technology Rules, 2003, it can be construed that the Adjudicating Officer is a quasi judicial authority. The wording from the provision under section 46 of the Act of 2000, “for the purposes of this Chapter” makes it clear that the Adjudicating Officer has the power to adjudicate the contraventions under sections 43, 43-D, 44 and 45 of the Act. It is significant to note that in the light of the provisions under section 46, the Adjudicating Officer is the first and exclusive court for adjudicating the matters under section 43. Civil Court's jurisdiction is expressly barred under the Act. 16. It is significant to note that in the light of the provisions under section 46, the Adjudicating Officer is the first and exclusive court for adjudicating the matters under section 43. Civil Court's jurisdiction is expressly barred under the Act. 16. Even though the Adjudicating Officer is appointed under the provisions of the Act having exclusive jurisdiction to adjudicate the contraventions under Chapter IX of the Act and the jurisdiction of Civil Court is barred in such cases, there is a limitation on the pecuniary jurisdiction of the Adjudicating Officer due to newly inserted provision of section 46 (1A) on 27.10.2009. 17. Apart from the above, we find that section 66 of the Act of 2000 is also relevant here which is reproduced herein-below: “66. Computer related offences -If any person, dishonestly or fraudulently does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both; Explanation- for the purposes of this section-- (a) the word "dishonestly" shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860). (b) the work "fraudulently" shall have the meaning assigned to it in section 25 of the Indian Penal Code (45 of 1860).” 18. In the case at hand, the FIR has been lodged under section 43 of the Act of 2000 which apparently has been made punishable under section 66 of the Act. It appears that the argument of the learned counsel for the petitioner that violation of provisions mentioned under section 43 of the Act of 2000 does not constitute a criminal offence appears to be wrong; the same has been made punishable under section 66 of the said Act. It is also simultaneously true that the violation of provisions of section 43 of the said Act would also entail civil liability which is to be decided by Adjudicating Authority established by the Government, therefore, it is absolutely clear that the violation of the provisions of section 43 of the Act of 2000 would constitute a civil as well as criminal liability. 19. In the case at hand, the FIR says that the accused petitioner who is shown at serial no. 19. In the case at hand, the FIR says that the accused petitioner who is shown at serial no. 29 in the array of accused, was involved in tampering with data base of the Computer System which was brought in use for disbursement of food grains through PDS System which were to be disbursed on the basis of Adhar Card; as per FIR allegation one Adhar Card is alleged to have been used for illegal transaction of many ration cards for the misappropriation/black-marketing of the essential commodities, hence to say that there was no role of the accused petitioner is matter of investigation to be made by the police and at this stage, it cannot be said that a cognizable offence is not made out against the accused petitioner. 20. The Full Bench of this Court in Ajit Singh @ Muraha v. State of U.P. (2006 (56) ACC 433) reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P. (2000 Cr.L.J. 569) after considering the various decisions including State of Haryana v. Bhajan Lal ( AIR 1992 SC 604 ) that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case. 21. From the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. Hence no ground exists for quashing of the F.I.R. or staying the arrest of the petitioner. 22. The writ petition is, accordingly, dismissed.