Adjudication proceedings Information Technology Act

A Good Article from Asian School of Cyber laws website on Adjudicating proceedings under Chapter IX of the IT ACT 2000.

Cyber Crimes - adjudication issues (source Asian School of Cyber Laws website)

1. Offences under Chapter XI of the Information Technology Act

Offences under Chapter XI of the Information Technology Act will be tried as per the provisions of the Criminal Procedure Code. The table below enumerates the various offences under the Information Technology Act and the courts by which they are triable. (JMFC stands for Judicial Magistrate First Class.)

Offence

Section: Court triable: Offence:
65:JMFC
hacking with computer system
66:JMFC
Publishing information which is obscene in electronic form
67:JMFC
Publishing information which is obscene in electronic form (subsequent offence)
67:Court of Session
Failure to comply with directions of Controller
68:JMFC
Failure to assist in decryption of information
69:JMFC
Securing or attempting to secure access to protected system
70:Court of Session
Misrepresentation
71:Any magistrate
Breach of confidentiality and privacy
72:Any magistrate
Publishing false Digital Signature Certificate
73:Any magistrate
Publishing Digital Signature Certificate for fraudulent purposes
74:Any magistrate

Offences under the Indian Penal Code

Cyber crimes under the Indian Penal Code will be tried as per the provisions of the Criminal Procedure Code. The table below enumerates the various cyber crimes under the Information Technology Act and the courts by which they are triable. (JMFC stands for Judicial Magistrate First Class.)

Offence
Section of Indian Penal Code
By what Court triable

Public servant framing an incorrect electronic record with intent to cause injury
167
JMFC

Absconding to avoid service of summons to produce electronic record
172
Any magistrate

Preventing service of summons or preventing publication of summons
173
Any magistrate

Intentional omission to produce electronic record
175
Triable in the Court that issued the summons or order to produce the document. In other cases it is triable by any magistrate

Fabricating false electronic evidence
192(Punishable under 193)
If committed for using evidence before a judicial proceeding then it is triable by a JMFC. Otherwise any magistrate can try it.

Destroying of electronic record to prevent its production as evidence
204
JMFC

Forgery of record of Court or of public register, etc.
466
JMFC

Forgery for the purpose of cheating
468
JMFC

Forgery for the purpose of defamation
469
JMFC

Using as genuine a forged document
471
JMFC

Knowingly possessing a forged document
474
JMFC

Counterfeiting authentication marks or devices
476
JMFC>

Falsifying accounts
477A
JMFC

3. Contraventions of Chapter IX of the IT Act

Adjudicating officer

The first authority that has jurisdiction to try a contravention of Chapter IX is the Adjudicating Officer. Section 46(1) reads as under:

For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder the Central Government shall, subject to the provisions of sub-section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central Government.

The Central Government has been empowered by this sub-section to appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of the State Government to be an Adjudicating Officer.

Section 46(2) stipulates that the Adjudicating Officer is required to give reasonable opportunity to the contravener, which may be in the nature of a notice stating clearly the charges against the contravener, so that, he gets the opportunity to defend himself against the allegation levelled against him. Non-compliance with this rule would vitiate the order of the Adjudicating Officer. The Adjudicating Officer may after considering the reply of the contravener pass an order as to compensation.

Section 46(2) reads as under.

The adjudicating officer shall, after giving the person referred to in sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section.

Reasonable opportunity is one of the basic principles of natural justice, which is embodied in the maxim "Audi Alterem Partem" (hear both sides).

The Adjudicating Officer has been empowered to award compensation in accordance with the provisions of the section and the contravention committed after holding due inquiry of the alleged contravention. The compensation will be awarded in the following manner - as he thinks fit, after giving the person a reasonable opportunity for making representation, being satisfied about the contravention.

The Legislators have been wise enough, and with the objective that any such "satisfaction", as provided in the preceding subsection will not cause any prejudice or unnecessary hardship to the offender, have made it mandatory that, the Adjudicating Officer should possess necessary experience in the field of Information Technology, only then will he be able to do justice to the nature of disputes arising before him. Now it becomes necessary for us to know the factors, which will determine the adjudication of penalty.

The expression "as he thinks fit", gives the impression that it has given the adjudicating officer discretionary power with relation to penalty adjudication. However, it is limited by the fact that it has to be exercised in accordance with the provisions of the concerned section. Moreover, it has been established by judicial precedents that discretionary power has to be just and equitable in accordance with the facts and circumstances of the case.

The Adjudicating Officer has to be satisfied that the contravention has been committed on the basis of the material placed before him. It is important to note here that such satisfaction has to be based on material facts. The Adjudicating Officer is required to apply his mind before making any order.

Section 46(3) stipulates that the adjudicating officer has to possess the prescribed experience in the field of Information Technology and Law. Section 46(3) reads as under.

No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government.

Section 46(4) provides that the Central Government shall specify the territorial and other jurisdictions of the adjudicating officers. The sub-section reads as under.

Where more than one adjudicating officers are appointed, the Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction.

The procedure to be followed by the adjudicating officers is laid down in section 46 (5). The sub-section reads as under.

Every adjudicating officer shall have the powers of a civil court which are conferred on the Cyber Appellate Tribunal under sub-section (2) of section 58, and-

a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code;

b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.

The Adjudicating Officer has been deemed to be a Civil Court for the purposes of Section 345 and Section 346 of the Criminal Procedure Code, 1973 and all the proceedings before him are judicial proceedings under the provisions of Section 193 and Section 228 of the Indian Penal Code.

Thus, the adjudicating officer is an Administrative Authority and all the proceedings before him will be quasi-judicial in nature. However, it is required of him that he acts judicially in respect of the basic principles of law.

The Act specifically empowers the Adjudicating Officer to hold due inquiry under Section 46 to determine the contravention. In course of inquiry and in accordance with the provisions of the Act, he is empowered in respect of the following matters:

i. Summoning and enforcing attendance of person
ii. Compelling the production of documents or electronic records
iii. Receiving evidence
iv. Issuing commission
v. Giving ex parte decisions
vi. Dismissing the application

Section 47 enumerates the factors to be considered by the Adjudicating Officer, to estimate the amount of compensation.

The section reads as under.

47. Factors to be taken into account by the adjudicating officer.

While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely: -

(a) The amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;

(b) The amount of loss caused to any person as a result of the default;

(c) The repetitive nature of the default

Let us try to understand this section in detail. The expression "have due regard" seems to mean that the factors contained in the section will not have binding efficacy on the Adjudicating Officer but will exist as guidelines or directives while making an assessment of the quantum of the damage.

The expression "Unfair advantage" will not only include unfair advantage only in terms of money but also will consider improvement and advantage the offender has made thereafter. This is based on the basic principle of law that whatever has been gained by wrongful conduct must be restored.

The expression "loss caused" necessarily mandates a relationship between the loss caused and the default, i.e. loss causing factor. The degree of relationship however has not been explained and is left to the Adjudicating officer to determine the required standard. However, loss as natural and necessary consequence of the alleged act has to be considered. The term "loss", in this section signifies the injury or damages in pecuniary terms, e.g. loss in trade, therefore the Adjudicating Officer will be required to put the person who has suffered loss in nearly the same position, as if he has not been injured.

"Repetitive nature" is the last guiding factor, which has to be taken into account by the Adjudicating Officer in quantifying the damage. Repetitive, basically means, that an act, which is done over and over again or is caused several times on its own due to certain features in it.

Cyber Regulations Appellate Tribunal

Section 57 relates to an appeal to the Tribunal.

57. Appeal to Cyber Appellate Tribunal.

(1) Save as provided in sub-section (2), any person aggrieved by an order made by Controller or an adjudicating officer under this Act may prefer an appeal to a Cyber Appellate Tribunal having jurisdiction in the matter.

(2) No appeal shall lie to the Cyber Appellate Tribunal from an order made by an adjudicating officer with the consent of the parties.

(3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Controller or the adjudicating officer is received by the person aggrieved and it shall be in such form and be accompanied by such fee as may be prescribed:

Provided that the Cyber Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

(4) On receipt of an appeal under sub-section (1), the Cyber Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

(5) The Cyber Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Controller or adjudicating officer.

(6) The appeal filed before the Cyber Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal.

A person aggrieved by an order made by the Controller or an adjudicating officer under the IT Act may prefer an appeal to a Tribunal having jurisdiction in the matter. No appeal lies to the Tribunal from an order made by an adjudicating officer with the consent of the parties.

The appeal is required to be filed within a period of forty-five days from the date on which the aggrieved person receives a copy of the order. It is required to be in form 1 of the Appellate Tribunal (Procedure) Rules, 2000 and be accompanied by a fee of Rupees two thousand. The Tribunal may entertain an appeal after the expiry of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

On receipt of an appeal, the Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. The Tribunal is required to send a copy of every order made by it to the parties to the appeal and to the Controller or concerned adjudicating officer.

The appeal filed before the Tribunal is to be dealt with expeditiously and endeavour will be made to dispose of the appeal finally within six months from the date of receipt of the appeal.

Section 48 empowers the Central Government to establish one or more Cyber Regulations Appellate Tribunals (hereinafter referred to as Tribunal). The Central Government is required to specify the matters and places in relation to which the Tribunal may exercise jurisdiction. Section 49 provides that a Tribunal is to consist of only one person, the Presiding Officer. He is to be appointed, by notification, by the Central Government.

Section 50 provides that only a person who is, has been or is qualified to be, a Judge of a High Court, or who is a member of the Indian Legal Service and is holding or has held a post in Grade I of that Service for at least three years, may be appointed as the Presiding Officer of the Tribunal.

Section 55 lays down that no order of the Central Government appointing any person as the Presiding Officer of a Tribunal can be called in question in any manner. It also provides that no act or proceeding before a Tribunal can be called in question in any manner on the ground merely of any defect in the constitution of a Tribunal.

Section 58 lays down the procedure and powers of the Tribunal. The Tribunal is not bound by the procedure laid down by the Code of Civil Procedure, 1908 but is to be guided by the principles of natural justice. The Tribunal is empowered to regulate its own procedure including the place at which it will hold its sittings.

The Tribunal has, for the purposes of discharging its functions under the IT Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters:

i. Summoning and enforcing the attendance of any person and examining him on oath,
ii. Requiring the discovery and production of documents or other electronic records,
iii. Receiving evidence on affidavits,
iv. Issuing commissions for the examination of witnesses or documents,
v. Reviewing its decisions,
vi. Dismissing an application for default or deciding it ex parte,
vii. Any other matter, which may be prescribed.

Every proceeding before the Tribunal is deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (IPC) and for the purposes of section 196 of the IPC. The Tribunal is also deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

Section 59 provides for the right to legal representation. The appellant may either appear in person or authorize one or more legal practitioners or any of its officers to present his or its case before the Cyber Appellate Tribunal.

Section 60 provides that the provisions of the Limitation Act, 1963, will, as far as may be, apply to an appeal made to the Cyber Appellate Tribunal.

High court

Section 62 provides for an appeal by a person aggrieved by any decision or order of the Cyber Appellate Tribunal. Such an aggrieved person may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Cyber Appellate Tribunal to him. Such an appeal may be made on any question of fact or law arising out of such order.

The section also empowers the High Court to extend the period for filing an appeal by a further sixty days. However, in such cases, the High Court must be satisfied that the appellant was prevented by sufficient cause from filing the appeal within the initial period of 60 days.

Civil Courts

Section 61 debars the jurisdiction of the civil courts. This section provides that:
i. No court will have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer or the Cyber Regulations Appellate Tribunal is empowered by the IT act, and

ii. No court may issue any injunction in respect of any action taken (or to be taken) in pursuance of any power conferred by the IT Act.

Miscellaneous provisions

Section 63 contains provisions relating to compounding (settling without going in for litigation) of contraventions. It empowers the Controller and the adjudicating officer to compound any contravention either before or after the institution of adjudication proceedings. The compounding may be subject to conditions as specified by the Controller or the adjudicating officer.

The section however warrants that the sum must not exceed the maximum amount of the penalty imposable under the IT Act for the compounded contravention. Once a contravention has been compounded, no proceeding or further proceeding can be conducted against the accused person.

This provision relating to compounding is not applicable to a person who commits the same or similar contravention within a period of three years from the date on which the first contravention, committed by him, was compounded. However, any second or subsequent contravention committed after the expiry of a period of three years from the date on which the contravention was previously compounded will be deemed to be a first contravention.

E.g. Aditya commits a breach of section 43(b) of the IT Act in 1992 and the contravention is compounded. If he contravenes the provision again in 1994, then it cannot be compounded. However, if he contravenes the provision again in 1997, then such contravention can be compounded.

Section 64 provides that an unpaid penalty imposed under the IT Act can be recovered as an arrear of land revenue. It also provides for the suspension of the license or the Digital Signature Certificate, as the case may be, till the penalty is paid.

Provisions relating to recovery arrears of land revenue are contained in local laws of Indian states. E.g. the Maharashtra Land Revenue Code, 1966 is the relevant law for the state of Maharashtra.

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