[Cybercrime] IPC Can Simultaneously Be Invoked If Sections Under IT Act Don't Address All Ingredients Of Offence: Bombay High Court Full Bench

The Bombay High Court recently held that while the Information Technology Act, 2000 is a special Act for addressing cybercrimes and has an overriding effect, it does not preclude the application of IPC in cases where the offences are not adequately addressed under the IT Act

The court held that section 43 (penalty for damage to computer) read with section 66 (fraudulently or dishonestly damaging computer), and section 72 (breach of confidentiality and privacy) of the IT Act do not encompass all ingredients of the offences of cheating and criminal breach of trust, as defined under the IPC.

Thus, the court held that the aforementioned offences under IPC can be simultaneously invoked with the sections of the IT Act against an accused in respect of the same act.

“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”, the court held.

A full bench of Justice Mangesh S Patil, Justice RG Avachat and Justice Shailesh P Brahme was answering a reference by a division bench regarding the interplay of provisions under the IT Act and IPC.

Facts

The accused was formerly employed as a Technical Manager at Cosmo Films Limited Company. During his tenure, he was provided with a company laptop, which he purportedly used to store personal data under a specific folder. Upon resigning, he requested a colleague to copy this personal data onto a pen drive. Subsequently, it was discovered that the folder allegedly also contained sensitive business information about Cosmo Films.

A complaint was filed against the applicant for offences under Sections 408 (criminal breach of trust) and 420 (penalty for cheating) of the IPC, along with Sections 43(b), 66, and 72 of the IT Act. The accused approached the court claiming that the sections under IPC could not be invoked as those elements were covered in the sections under the IT Act.

Opinion Of The Division Bench

The division bench observed that Section 43 of the IT Act does not contemplate cases in which permission is obtained by cheating the owner or a person in charge of the computer. It simply says that if these acts are done without permission they are penalised if they are done dishonestly or fraudulently. Under IPC, “dishonestly” means the acts done with the intention of causing wrongful gain to oneself and wrongful loss to another while “fraudulently” means the acts done with intent to defraud others.

Further, the division bench opined that Section 72 does not cover the case of converting the electronic record to its own use.

Disagreeing with an earlier division bench judgment in Gagan Harsh Sharma v. State of Maharashtra (2019), it referred the matter to a larger bench to address several questions.

Larger Bench Verdict

• Whether obtaining permission through deceitful means, such as inducing the owner or person in charge of a computer system to perform acts enumerated under Section 43 of the IT Act, falls within the purview of the Act. Additionally, whether the expressions "fraudulently or dishonestly" cover situations where permission to do these acts is obtained by cheating the owner or person in charge of the computer system.

The court held that neither Section 43 nor Section 66 covers situations where the acts are done by inducing the owner or person in charge of a computer system through cheating, as required under IPC sections 415 and 420. Section 43 read with Section 66 addresses only situations where someone dishonestly or fraudulently performs acts outlined in Section 43. Thus, if an act is done with permission obtained through inducement, constituting cheating under IPC Section 415, it falls short of being covered under the IT Act provisions, the court concluded.

The court emphasized that while Section 66 covers fraudulent and dishonest intentions, it does not encompass the element of deceit necessary for constituting cheating under IPC Section 415.

“The use of word 'deceiving' in section 415 is in addition to the words 'fraudulently' or 'dishonestly' used therein. A plain reading would clearly indicate that in order to constitute 'cheating' as defined under section 415, element of deceit is an additional requirement, over and above the intention of the person resorting to such deceit being fraudulent and dishonest.”

• Whether Section 72 of the IT Act covers all the ingredients in cases where access is secured dishonestly to electronic correspondence, information, documents, or other materials, and such records are misappropriated or converted for personal use.

Section 72 of the IT Act penalizes breaches of confidentiality and privacy, where access to electronic records or other material is obtained without the consent of the concerned person, resulting in disclosure to another party. On the other hand, IPC Sections 406, 408, and 409 pertain to criminal breach of trust by various categories of individuals, including public servants, clerks, or servants.

IPC Section 405 defines criminal breach of trust as dishonest misappropriation or conversion of entrusted property for personal use. IPC Section 403 defines dishonest misappropriation as the wrongful conversion of movable property.

Comparing the elements of offences under Section 72 of the IT Act with those under IPC Sections 406, 408, and 409 in light of IPC Sections 403 and 405, the court concluded that Section 72 does not encompass situations where breaches of confidentiality are undertaken for personal gain or where access is secured dishonestly. Instead, such actions would fall under the purview of IPC Sections 406, 408, and 409, it held.

Further, the court held that Sections 43 and 72 of the IT Act do not cover criminal acts done with common intention. It observed that the IT Act lacks provisions demonstrating legislative consideration for situations where such offences are perpetrated collectively, akin to the concept of common intention under Section 34 of the IPC.

Case no. – Criminal Application No. 2562 of 2019

Case Title – Awadhesh Kumar Parasnath Pathak v. State of Maharashtra and Anr.