Important provisions of Criminal minor Acts(Part 1)

 

1) Important provisions of NDPS Act 1985.

https://www.lawweb.in/2019/09/important-provision-of-ndps-act-1985.html

2) Important provisions of Protection of Children from Sexual Offences Act, 2012.

https://www.lawweb.in/2020/04/important-provisions-of-protection-of.html

3) Important provisions of National Investigation Agency Act 2008 as amended in the year 2019.

https://www.lawweb.in/2020/07/short-notes-on-important-provisions-of.html

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Basic concept of Digital signature and Electronic signature

1) Concept of Electronic signature was introduced in Information Technology Act by Amendment Act 2009.

Statement of Objects and Reasons of Amendment Act 10 of 2009.-
The United Nations Commission on International Trade Law (UNCITRAL) in the Year 2001 adopted the Model Law on Electronic Signatures. The General Assembly of the United Nations by its Resolution No. 56/80, dated 12th December, 2001, recommended that all States accord favourable consideration to the said Model Law on Electronic Signatures. Since the digital signatures are linked to a specific technology under the existing provisions of the Information Technology Act, it has become necessary to provide for alternate technology of electronic signatures for bringing harmonisation with the said Model Law.

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Precaution to be taken by investigating officer for preserving electronic evidence if mobile phone was used for commission of crime

 In a case in which a mobile phone is used for the commission of the crime, the first and foremost thing the officer should have done was to secure the phone to prevent the destruction/manipulation of data. He should have first recorded the status of the device after taking a photograph and record any on-screen information. If the device was switched on, it should have been switched off and the batteries should have been removed. Turning off the phone would preserve the various information, metadata and call logs and it would also prevent any attempt to wipe off the contents of the phone remotely. The officer also was bound to seize all cables, chargers, packaging, manuals etc. if possible to assist the enquiry and minimise the delays in any examination by the digital evidence specialist. The password/pin of the device, if any, also had to be obtained from the owner of the phone. The phone had to be packed and sealed in antistatic packaging such as plastic bag, envelope or cardboard box and the secured device along with the collected data had to be sent to the digital evidence specialist. Only the said specialist can obtain and copy the digital evidence and also provide an analysis of the evidence. None of these procedures were adopted by the investigating officer. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. No. 7022 of 2018

Decided On: 02.11.2018

 Vijesh  Vs. The State of Kerala and Ors.

Hon'ble Judges/Coram:

Raja Vijayaraghavan V., J.

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Whether S 79 of Information Technology Act will provide protection to accused under NDPS Act?

We thus find that the appellant and his associates were not innocent intermediaries or network service providers as defined under Section 79 of the Technology Act but the said business was only a fagade and camouflage for more sinister activity. In this situation, Section 79 will not grant immunity to an accused who has violated the provisions of the Act as this provision gives immunity from prosecution for an offence only under Technology Act itself.

10. We are therefore of the opinion that in the face of overwhelming inculpatory evidence it is not possible to give the finding envisaged under Section 37 of the Act for the grant of bail that there were reasonable grounds for believing that the appellant was not guilty of the offence alleged, or that he would not resume his activities should bail be granted.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1659 of 2007 

Decided On: 03.12.2007

 Sanjay Kumar Kedia Vs.  Narcotics Control Bureau and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and H.S. Bedi, JJ.

Citation: (2008) 2 SCC 294

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Important provisions of Information Technology Act 2000

The main objective of information technology Act was legal recognition of electronic commerce and to facilitate electronic filing of documents with the Government.

S 2.[(w) “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;]

66-C. Punishment for identity theft.—Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.

66-D. Punishment for cheating by personation by using computer resource.—Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.

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Who are Intermediary as per information technology Act?

S 2 [(w) “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;]

Subs. by Act 10 of 2009, S. 4 (w.e.f. 27-10-2009). Prior to substitution it read as:

‘(w) “intermediary” with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;’

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Whether manual intervention is permissible if anything goes wrong in technical processes?

The   impact     of   technology   in   our   life   today,   is

unimaginable.  We use technology  every day and it has saved

us of time and efforts.   Introduction  of the e­tendering system

has made the cumbersome process of tenders simple, faster and

also free from unnecessary  human intervention.  However,  in

a situation with which we have  dealtwith above, the question

is whether  the use of the technology  has offered solutions  or

it has created issues.  The increased  dependency   on modern

technology   has reduced our creativity and human being is

dependent upon the said technology   which  undisputedly  is

an useful servant  but a dangerous master.   In words of Albert

Einstein “human spirit  must  prevail over technology”.  In the

present     case   in   hand   we   have   observed   that   uncertainty

prevails   in   certain   areas   and   no   technology   can   make   the

system   'full   proof'     and   as   such   a   situation   where   the

technology  can err, we cannot completely  exclude the element

of   human   intervention   in   exceptional   circumstances.

Ultimately, it is the human being who controls the technology

and when it errs, it is for the human being to rectify it.   No

solution   is   coming   from   the   expert   and   the   technology

operator­NIC as to what happens if the “freeze button is not

clicked”.   On the other hand, the NIC itself  shows that  once

the bids are uploaded,  they remain  safe and saved and human

intervention  is not possible.  In this background  and for the

reasons which we have already discussed above,   we feel   it

expedient   to  intervene in the technological procedure since

we feel that the technology   has failed to serve   its intended

purpose   in   the   present   case   and   interest   of   justice   call   for

intervention. Every citizen has legal and fundamental rights

which are required to be protected and in a digital world the

said rights     cannot be lost sight   of but the same   are to be

protected  by providing alternative  and effective solutions, to

be introduced  into the modern technology/web­system and in

the process of tender it is very much necessary to ensure that

the bidders   are not shunted out of the procedure only on

account of any technical glitch and technology   needs to be

developed   in   a   manner    to   cater  to   their    needs     without

causing   any delay in the scheduled time.   We also makes it

clear that we are inclined to grant relief to the petitioners,

considering   'public   interest   and   the   fact   that   the   bid   of

petitioners (technical/financial) are already sealed  after their

uploading  and no changes  are possible now, and we treat this

as sealed packets  submitted within date and time as per tender

document. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO.  2070    OF    2017

 Shapoorji Pallonji & Company Private  V/s. State of Maharashtra, 

   CORAM :  ANOOP V. MOHTA       AND

                     SMT. BHARATI H. DANGRE,JJ.

                        DATE  :  28th SEPTEMBER,   2017

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What is effect of judgment of Shreya singhal on S 79 of information technology Act?

We have referred to all these provisions of the IT Act only to lay stress that the legislature has deliberately used the words “electronic form”. Dr. Singhvi has brought to our notice Section 79 of the IT Act that occurs in Chapter XII dealing with intermediaries not to be liable in certain cases. Learned counsel has also relied on Shreya Singhal (supra) as to how the Court has dealt with the challenge to Section 79 of the IT Act. The Court has associated the said provision with exemption and Section 69A and in that context, expressed that:-

“121. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69-A. We have seen how under Section 69-A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking order can be passed—one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69-A read with the 2009 Rules.

122. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b).

123. The learned Additional Solicitor General informed us that it is a common practice worldwide for intermediaries to have user agreements containing what is stated in Rule 3(2). However, Rule 3(4) needs to be read down in the same manner as Section 79(3)(b). The knowledge spoken of in the said sub-rule must only be through the medium of a court order. Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are valid.”

28. We have referred to the aforesaid aspect as it has been argued by Dr. Singhvi that the appellant is protected under the said provision, even if the entire allegations are accepted. According to him, once the factum of electronic record is admitted, Section 79 of the IT Act must apply ipso facto and ipso jure. Learned senior counsel has urged Section 79, as the language would suggest and keeping in view the paradigm of internet world where service providers of platforms do not control and indeed cannot control the acts/omissions of primary, secondary and tertiary users of such internet platforms, protects the intermediary till he has the actual knowledge. He would contend that Act has created a separate and distinct category called ‘originator’ in terms of Section 2(1)(z)(a) under the IT Act to which the protection under Section 79 of the IT Act has been consciously not extended. Relying on the decision in Shreya Singhal (supra), he has urged that the horizon has been expanded and the effect of Section 79 of the IT Act provides protection to the individual since the provision has been read down emphasizing on the conception of actual knowledge. Relying on the said provision, it is further canvassed by him that Section 79 of the IT Act gets automatically attracted to electronic forms of publication and transmission by intermediaries, since it explicitly uses the non-obstante clauses and has an overriding effect on any other law in force. Thus, the emphasis is on the three provisions, namely, Sections 67, 79 and 81, and the three provisions, according to Dr. Singhvi, constitute a holistic trinity. In this regard, we may reproduce Section 81 of the IT Act, which is as follows:-

“81. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act 1957 or the Patents Act 1970.”

29. The proviso has been inserted by Act 10 of 2009 w.e.f. 27.10.2009.

30. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum ofShreya Singhal (supra) and we concur with the same. 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Dipak Misra and Praffula C. Pant, JJ.)

Sharat Babu Digumarti  v. Govt. of NCT of Delhi .

Criminal Appeal No. 1222 of 2016

(Arising out of S.L.P. (Criminal) No. 7675 of 2015)

Decided on December 14, 2016

Citation:2016 SCC OnLine SC 1464,AIR 2017 SC 150,(2017) 2 SCC18,2017 CRLJ977

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Whether person accused of posting of obscene messages through social networking site in account of woman can be discharged?

The gist of the allegations in the impugned first information report is to the
effect that the petitioner had posted obscene messages through a social
networking site in the account of the defacto complainant. It is further alleged
that father of the petitioner over his mobile phone requested the defacto
complainant not to take steps against the petitioner.
On the basis of the aforesaid allegations, FIR was registered and
investigation was initiated. It has been submitted on behalf of the petitioner that
he was discharging his official duties at the relevant time when the said
messages are alleged to have been posted on the social networking profile of the
defacto complainant. It has further submitted that the seizure of the mobile
phone from the possession of the petitioner does not tally with the mobile phone
alleged to have been used for the purpose of dispatch of such electronic message.
 Learned Magistrate however rejected the application for discharge of the
petitioner.
I have considered the materials on record. Prima facie, the allegations in
the FIR disclose the ingredients of the alleged offences. It is alleged that the
petitioner posted obscene messages in order to harass the defacto complainant,
who is a lady. Plea of alibi, as claimed by the petitioner, is a question of fact
which may be agitated in the course of trial. However, it cannot be said with
absolute certainty that since the petitioner was employed at the material point of
time he had no access any electronic device so as to dispatch the electronic
messages as alleged in the FIR rendering such accusation patently absurd and
inherently improbable. The issue of discrepancy in the matter of seizure of the
mobile phone is also a question of fact which does not go to the root of the
jurisdiction of the Court to try the alleged offences.
In view of the aforesaid facts, I am of the opinion that the charge against
the petitioner cannot be said to be groundless and the prayer for discharge was
rightly turned down by the trial court. The factual defences of the petitioner are,
however, kept open to be agitated in accordance with law during trail, if so
advised.
IN THE HIGH COURT AT CALCUTTA
Criminal Revision Jurisdiction
Appellate Side
BEFORE:
The Hon’ble Mr. Justice Joymalya Bagchi
C.R.R. 1711 of 2016
BINOY SARKAR @ BINAY SARKAR
V
THE STATE OF WEST BENGAL & ANR.

Judgement on : June 06, 2016
Citation: 2016 CRLJ4382 Cal

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Whether Youtube can permit uploading of content which violates laws of India?

 Mr. Rajiv Nayar, learned Senior Advocate appearing for Tata Sky pointed
out that there was an unacceptable delay in YouTube LLC responding to
Tata Sky's complaint to it about the offending video which virtually sought
to teach the public how to hack Tata Sky's set top boxes (STBs) which were
encrypted, thereby enabling free viewership of TV channels/contents which
were otherwise available only to subscribers. He referred to Rule 3 (2) (d)
and (e) and Rule 3 (4) of the Information Technology (Intermediaries
Guidelines) Rules 2011 ('ITIG Rules') and submitted that YouTube LLC
was obliged to act with promptitude once it was clear that the offending
videos were illegal inasmuch as that Tata Sky's STBs could be hacked into
through simple steps. He referred to the order of the Supreme Court in Sabu
Mathew George v. Union of India 2016 SCC OnLine SC 681 in which it
was observed that the intermediaries there "cannot put anything that violates
the laws of this country."
 In the present case neither Tata Sky nor YouTube appear to have been
clear, in the first instance, whether the complaint pertained to a trademark or
a copyright infringement or to some other legal issue. The correspondence
exchanged between them reflects this confusion. However, there could be
complaints regarding some material on the website of YouTube which by
their very nature require it to act immediately without insisting on the
Complainant having to clearly demonstrate that the complaint falls within
one or the other category that YouTube has identified for the purposes of
acting on such complaints.
 The Community Guidelines are meant to guide a person uploading
content on what should not be uploaded. It is understandable that with the
huge volume of uploads it is not practical for YouTube to be viewing each
upload in order to decide whether it is objectionable from the point of view
of its Community Guidelines. However, when a specific instance of possible
violation is drawn to its attention, its review team will have to view the
content and take a call on whether it requires to be taken down. The
response time as well as the response itself are both critical for a
complainant. In the present case Tata Sky's specific complaint was that the
video was "giving step by step instructions on possible hacking" of its STBs
in order to receive to receive High Definition content, free of cost. Tata Sky
pointed out that this was violative of its rights and of broadcasters who own
the HD content broadcast through Tata Sky Platform and was an offence 
under Section 66 of the IT Act. In terms of Rule 3 (1) (e) of the ITIG,
YouTube is obliged not to host content that violates any law for the time
being in force. In determining it to be a complaint regarding 'circumvention
of technological measures' which is defined as an offence under Section 65
A of the Copyright Act, YouTube's review team appears to have got into a
bind about correctly 'categorising' it instead of actually taking a call on
whether the nature of the content required taking down. If it had focused on
the latter aspect the need for Tata Sky to have approached this Court for
relief could have been avoided.
IN THE HIGH COURT OF DELHI AT NEW DELHI

CS (COMM) 223/2016
TATA SKY LTD.
versus
YOUTUBE LLC & ORS. .
CORAM: JUSTICE S. MURALIDHAR
DATED: 10.08.2016

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How to ascertain liability of Cyber Cafe Owner Liability (S67C) in case of cyber crime?

 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.       ­   ­                           
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  )

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Whether offence U/S 65 and 66 of information technology Act is made out against owner/in-charge of computer system?

 In the present case, the computer network belongs to the school of the petitioner. Computer network is owned by the school and the Principal is owner/in-charge of the computer system and if any person commits any of the acts provided in Section 43 of the IT Act, he can be held liable nor the owner. Therefore, the offence under Sections 65 and 66 of the IT Act are also not made out from the complaint or from the preliminary evidence.

Punjab-Haryana High Court

Kavita C. Das vs Arvind Thakur And Another on 3 October, 2013

Coram: Hon'ble Mr. Justice Inderjit Singh .....
Citation;2014(3) crimes 75 (P & H)

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Information technology act and Email

The Indian Evidence Act prescribes the admissibility and the procedure as to how the veracity and the value of evidence are gauged. Originally passed in 1872 the enactment has been kept relevant through frequent amendments and insertions. One such amendment caused by the Information Technology Act, 2000 inserted a bunch of sections relating to digital evidence.
The first is Section 65A which states that  the contents of electronic records may be proved in evidence by the parties in accordance with the provisions of Section 65B. Going further, Section 65B, sub clause 1 states that on the fulfillment of certain conditions any information contained in an electronic record shall be deemed to be a document and shall be admissible in evidence without further proof or production of the originals. This means that a person filing the printout of an email in court can rely upon it as an original without the need to actually file the original softcopy of it.
The conditions under which this may be done are contained under sub-clause 2 of Section 65B which reads as follows:

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