From Paper to Pixels: What is importance of theory of Functional Equivalence under IT Act and BSA 2023?

 Theory of Functional Equivalence in Indian Cyber Law, Information Technology Act, and Bharatiya Sakshya Adhiniyam

The theory of functional equivalence represents a foundational legal principle that ensures electronic records and transactions receive the same legal validity and treatment as their traditional paper-based counterparts. In the context of Indian cyber law, this principle serves as the cornerstone for digital transformation while preserving the integrity of existing legal frameworks.

Core Concept of Functional Equivalence

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Bombay HC: IPC Can Simultaneously Be Invoked If Sections Under IT Act(Cyber crime) Don't Address All Ingredients Of Offence

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

JUDGMENT (MANGESH S. PATIL, J.) :

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Whether wife is liable to pay damages for unauthorized access to gmail of husband?

As far as the question of admissibility of evidence collected by questionable means in the dowry case is concerned, it is for the Hon’ble courts to decide the use of such evidence on case to case basis, as the context and circumstances of each case are highly different.

Under IT Act, the Adjudicating officer has to decide on basic two questions

— whether IT Act was violated and if yes, then what punishment is due. Based on above circumstances and arguments. I conclude as following:

1. Respondent No. 1 has violated Section 43 of IT Act, and made unauthorized access to Gmail accounts of her husband and her father-in law, and unauthorisedly downloaded/forwarded/printed their emails and chat sessions with others, thus committing Identity Theft by using the password belonging to others dishonestly, and violating the privacy of not only the Complainants, but also of others with whom these chat sessions were conducted.

2. Given the fact that she gave the evidence only to Police and the Court, in the Dowry case lodged by her against her husband and in-laws, and did not make It widely public, I do not hold her liable for damages. Under section 66-C, there is provision of fine for Identity Theft, for dishonest use of password of any other person. I order that she pay a token fine of Rupees One Hundred to the State Treasury.

BEFORE SH. RAJESH AGGARWAL, ADJUDICATING OFFICER, INFORMATION TECHNOLOGY ACT 2000, GOVERNMENT OF MAHARASHTRA, AT MANTRALAYA, MUMBAI — 400032

Complaint No. 2 of 2010 IN THE MATTER OF

1. Sh. Vinod Kaushik

2. Sh. Neeraj )Kaushik……..Complainants Through Mrs. S.R. Padhy, Advocate

Versus

1. Ms. Madhvika Joshi

2. Sb. Atul Tripathy

3. Ms. Monika Agnihotri

4. Cognizant Technology Solutions Pvt.

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