Cafe means as per definition in Act. In I.T. Act intermediary includes
Cyber Cafe. Cyber Cafe means any facility from where access to the
internate is occurred by any person in the ordinary course of business to
the members of the public. As per rule 3 of the Information Technology
( guidelines for Cyber Cafe) Rules 2011 registration of Cyber Cafe is
compulsory. As per rule 4 taking ID proof of users is compulsory. As per
rule 5 log register is compulsory. Preserving the information under rule
4 and 5 for 1 year is compulsory. In the present case Cyber Cafe was not
registered. Requisite information was not obtained and preserved. As
per section 67 C (1) preserving and retaining the information by
intermediary is compulsory. Breach of sub section 1 is punishable as per
section 67 C (2) of I.T. Act. Internet connection was in the name of
accused Vishal Bhogade. It was being run by accused Sandesh Dere.
Hence, considering the Act and rules framed, both the accused are
responsible for contravention of rules.
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
(COURT NO. 3), PUNE
(Presided over by S. R. Nimse)
R C. C. No. 2095/2013
Complainant State of Maharashtra
V E R S U S
Accused 1. Vishal Hiraman Bhogade.
2. Sandesh Sopan Dere
Offence Punishable Under Section 43 (g), 66, 67 C (2) of Information
Techonology Act, 2000 and section 188 of Indian Penal Code .
( Delivered on 31 th July 2015 )
43 (g), 66, 67 C (2) of Information Technology Act, 2000 and section
188 of Indian Penal Code.
2. Prosecution case can be summarized as under
Informant Dr. Sanjay Tungar was working in Cyber Crime Cell,
Commissioner office, Pune. On 25/8/2012, one Email is received on
mailID of Police Commissioner, Pune. Subject of that mail was " In
Ganesh festival bomb blast" . Mail contains message as " Mission Ganesh
attack. If you want to stop try but don't cry". As it was objectionable
mail it was sent to Cyber Crime Cell, Pune for investigation. Informant
Dr. Tungar conducted preliminary inquiry. He obtained information from
Yahoo Company and BSNL. It revealed in investigation that said mail
was sent from Raje Computers, Rajgurunagar, Pune. He visited the said
Cyber Cafe. Internet connection was in the name of accused Vishal
Bhogade. Cyber Cafe was being run by Sandesh Dere. That cyber cafe
was not registered. Necessary records were not maintained. I.D proofs
were not obtained from users. Hence, police could not reach to main
culprit. Dr. Tungar lodged FIR against present accused. On basis of that
FIR Cr. No. 191/2012 was registered.
3. Offence was investigated by PI. Alfonso. During investigation, She
recorded statement of witnesses, seized harddisk, conducted spot
panchanama. After completion of investigation she has filed present
chargesheet.
4. Initially charge against accused was framed for offence punishable
under section 43 (g), 66, of Information Technology Act, 2000 and
section 188 of Indian Penal Code. At later stage, charge under section
67C(2) was also framed. Accused denied the charge and claimed to be
tried. After framing charge under section 67C (2) of I.T.Act, accused
filed pursis that they doesn't want to further crossexamine any witness.
5. Prosecution examined informant Dr. Sanjay Tungar to prove their
case. After evidence of the prosecution, statements under section 313 of
the Code of Criminal Procedure are recorded. Defence of the accused is
of total denial. They have not adduced any evidence. Heard argument
by both the sides.
6. Considering all above facts and circumstances points are arose for
my determination alongwith their reasoned findings are as under.
POINTS FINDINGS
1 Does the prosecution prove that, on 25/8/2012
at Raje Computers, Cyber Cafe, accused
provides assistance to unknown person to
facilitate access to computer network in
contravention of the act, rules or regulations
made thereunder ? ( sec.43 g)
No
2 Does the prosecution prove that, on above date,
time and place accused dishonestly or
fraudulently provides assistance to unknown
person to facilitate access to computer network
in contravention of the act, rules or regulations
made thereunder ? (sec.66)
No
3 Does the prosecution prove that, on above date,
time and place accused disobeyed and order
No 4
promulgated by a public servant ? (sec.188)
4 Does the prosecution prove that, on above date,
time and place accused contravene the
information technology (guidelines for Cyber
cafe) rules, 2011 ? (sec.67C(2)
Yes
5 What Order ? As per final
order.
Reasons
AS TO POINT NOs. 1 to 4
7. Initially accused were charged for offences punishable under
section 43(g),66 of I.T.Act and section 188 of IPC. Section 43 is in
respect of penalty and compensation for damage to computer, computer
system, etc. Section 43(g) is providing assistance to any person to
facilitate access to computer system. Section 43 of the act provides only
compensation. Section 66 of the act is penal section for section 43.
Present case is not in respect of damage to computer or computer
system. Hence, section 43 (g) as well as section 66 of I.T. Act is not
applicable.
8. Section 188 of IPC is punishment for disobeying order
promulgated by public servant. Information Technology Act is special
Act. Specific rules are framed as guidelines for Cyber cafe. For breach of
those rules section 67 C is provided. Hence, section 188 of IPC is not
applicable when there is specific provision of section 67 C under Special
Act.
9. To prove guilt of accused prosecution examined informant Dr.
Sanjay Tungar. He has deposed as per FIR. No other witness is examined
by prosecution. But, Dr. Tungar deposed about offence of accused very
specifically. As per section 134 of Indian Evidence Act there is no
particular number of witnesses required for the proof of any fact.
Section 134 of Indian Evidence Act is as follows.
" No particular number of witness shall in any case be required for the
proof of any fact".
Hence, no other witness is examined except Dr. Tungar does not affect
the prosecution case.
10. Dr. Tungar deposed in his evidence as followsOn
25/8/2012 one objectionable Email was received by Commissioner
of Police, Pune. That Email was in respect of proposed bomb blast
during Ganesh festival. He was working in Cyber Crime Cell. That Email
was forwarded to him for inquiry. Copy of that Email is at article 'A'.
That Email was sent through Yahoo Company. Hence, Smt. Alfanso
inquired with Yahoo Company. That letter was at Exh. 18. Yahoo
Company sent letter giving I.P address as 117.195.89.35. That
information was at article "B". Smt. Alfanso inquired of that I.P address
to BSNL. BSNL informed that said I.P address is given to accused Vishal
Bhogade. That letter is at article "C". Informant personally visited that
address. Cyber Cafe named as " Raje Computers" was there. Net
connection was in the name of accused Bhogade. Cyber Cafe was being
run by accused Sandesh Dere. Cyber Cafe was not registered. I.D proofs
from customers were not obtained. Register of customers was not
maintained. Hence, he has lodged FIR which is at Exh. 20.
11. Person who has sent that objectionable Email was never traced
out. Allegations against accused are only for contravention of guidelines
framed for Cyber Cafe. Letter at article "C" shows that IP address was
allotted to accused Vishal Bhogade. Informant specifically stated that, he
personally visited the Cyber Cafe. It was not registered and requirements
as per rules were not complied. Crossexamination of this witness is
conducted by defence. But, nothing helpful is came on record. Question
about Email spoofing were asked to this witness. But, mere asking those
questions is not sufficient. Accused has to show Email spoofing was
done in present case. It is also to be considered here that, prosecution is
mainly based for contravention of guidelines for Cyber Cafe. Informant
specifically stated about non registration of Cyber Cafe, non obtaining of
ID proofs and non maintained of information of users. Not a single
question is asked in respect of contravention of these rules. When
informant specifically stated about non compliance of rules then it was
responsibility of accused to show they have fulfilled the rules. Burden
was later on shifted on defence. But, they have not discharged that
burden.
12. As per guidelines for Cyber Cafe rules intermediary and Cyber
Cafe means as per definition in Act. In I.T. Act intermediary includes
Cyber Cafe. Cyber Cafe means any facility from where access to the
internate is occurred by any person in the ordinary course of business to
the members of the public. As per rule 3 of the Information Technology
( guidelines for Cyber Cafe) Rules 2011 registration of Cyber Cafe is
compulsory. As per rule 4 taking ID proof of users is compulsory. As per
rule 5 log register is compulsory. Preserving the information under rule
4 and 5 for 1 year is compulsory. In the present case Cyber Cafe was not
registered. Requisite information was not obtained and preserved. As
per section 67 C (1) preserving and retaining the information by
intermediary is compulsory. Breach of sub section 1 is punishable as per
section 67 C (2) of I.T. Act. Internet connection was in the name of
accused Vishal Bhogade. It was being run by accused Sandesh Dere.
Hence, considering the Act and rules framed, both the accused are
responsible for contravention of rules. As discussed above section 43 (g),
section 66 of I.T. Act section 188 of IPC are not applicable. Hence, I
answer the point No. 1 to 3 in the negative and point No.4 in the
affirmative.
AS TO POINT NO.5
12. As supra dictus, offence punishable under section 67 C (2) of
Information Technology Act, 2000 is proved against the accused.
Offence is for non registration of Cyber Cafe and non maintenance of
required information. Intention behind the rules needs to be considered.
Cyber Crime or Cyber terrorism is big challenge/ threat before the world
community and specially before India in 21 st century. To cope up with
that challenge various rules are framed. With the help of Cyber Cafe
anyone can commit Cyber Crime and if proper record is not maintained
he may escape from clutches of police. In the present case objectionable
Email received at Commissioner Office, Pune. But, due to non
maintainance of record by accused main culprit is not traced out. Hence,
it would not be proper to give benefit of section 360 of Cr.P.C to accused.
It is necessary to hear the accused on the point of sentence.
13. Accused when asked about quantum of sentence submitted that,
they are law abiding persons, they don't have any criminal record. They
are attending the court regularly. They requested further to impose
minimum punishment. Punishment prescribed for the said offence is
imprisonment which may extend to 3 years and with fine. Accused
attended the hearing regularly. Not on a single instance N.B.W was
issued against them for securing their presence. But, while considering
their regular presence court can not overlooked effect of their ommision
to keep and preserve the record. Hence, considering prescribed
punishment, submission by accused and their behaviour during the trial,
it would be proper to impose imprisonment of 15 days and fine of Rs.
10,000/each upon the accused. Hence in an answer to this point I pass
following order
O R D E R
1. Accused Vishal Hiraman Bhogade, Sandesh Sopan Dere are
convicted for the offence punishable under section 67 C (2) of
I.T. Act vide sec. 248(2) of the Code of Criminal Procedure
and sentenced to suffer simple imprisonment for 15 days and
to pay fine of Rs. 10,000/ each. In default of payment of fine
to suffer simple imprisonment for 15 days.
2 Accused Vishal Hiraman Bhogade, Sandesh Sopan Dere are
acquitted of the offence punishable under section 43 (g), 66,
of Information Technology Act, 2000 and section 188 of Indian
Penal Code vide sec.248(1) of the Code of Criminal Procedure .
3. Accused to surrender their bail bond.
4. Muddemal property be preserved as main culprit is not traced
out till today. Concern PSO is directed to file chargesheet
against when unknown accused is traced out.
5. Copy of Judgment be supplied to the accused free of costs.
Date: 31/07/2015 (S.R. Nimse)
Place : Pune J.M.F.C. (Court No.3) Pune
Court no. 3 Pune
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